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^T R I A L 



OFFICERS AND CREW OF THE PRIVATEER 
SAVANNAH, , j, 



i^ 



6S-f 



ON THE CHARGE OF PIRACY, 



UNITED STATES CIRCUIT COURT FOR THE SOUTHERN 
DISTRICT OF NEW YORK. • 



HON. JUDGES NELSON AND SHIPMAN, PRESIDING. 



REPOETED BY A. F. WARBDRTON, STENOGRAPHER, 

AND CORRECTED BY THE COUNSEL. 



NEW YORK: 

BAKER cfe GODWIN, PRINTERS 

PRINTING-HOUSE SQUAEB, OPPOSITE CITY HALL. 

1862. 




\ 



V. - "=» 



I 



CONTENTS. 



T-. Page 

Prelijiinaky Proceedings : 

Capture of the Savannah ; the removal of the prisoners to New 

York, and their committal for trial, . . . . v 

The Indictment, ••..., vi 
The Arraignment, ...... xiii 

Trial of the Prisoners. First Day : 

Organization of the Court, ..... 1 

Impaneling of the Jury, . . . . .2 

Opening of Mr. E. Delafield Smith, United States District Attor- 
ney, ....... 14 

Testimony for the Prosecution : 

Albert G. Ferris, . . .20 

William Habeson, .... 41 

George Thomas, . . . . .41 

George H. Cables, ..... 41 

Thies N. Meyer, . . . . . .42 

Horace W. Bridges, ..... 46 

Silas H. Stringham, . . . .48 

Argument on the Jurisdiction ; . 

Mr. Larocque, ..... 49 

Mr. Brady, . . . . .50 

Mr. Evarts, ...... 50 

Mr. Larocque, • • # • • • . .51 

Trial, Second Day : 

Decision on the Jurisdiction, ..... 54 

Testimony for the Prosecution, resumed ; 

Silas H. Stringham, . . . . . .55 

David C. Constable, ..... 60 

Daniel D. Tompkins, . . . . .62 

J. Buchanan Henry, ..... 63 

Ethan Allen, . . . . . .64 

Mr. Larocque's Opening for the Defence, ... 66 

Documentary Testimony, ..... 108 

Trial. Third Day : 

Documentary Testimony, . . . . .110 

Testimony for the Defence : 

Daniel D. Tompkins, . . . .112 

Presentation of Authorities by Counsel for the Prosecution, 113 



IV CONTENTS. 

Page 
Arguments of Counsel on the Points of Law : 

Mr. Lord, 117 

Mr. Larocque, . . . . .133 

Trial. Fourth Day : 

Arguments of Counsel on the Points of Law : 

Mr. Larocque, continued, ..... 144 

Mr. Mayer, . . . . . .164 

Mr. Brady, . . . . -169 

Mr. Evarts, . . . • .170 

Trial. Fifth Day : 

Sumuiings up of Counsel to the Jury : 

Mr. Dukes, . . . . . . 204 

Mr. Sullivan, . .218 

Mr. Davega, . . . . • ■ .231 

Mr. Brady, . ' . . .236 

Trial. Sixth Day: 

Suinmings up of Counsel to the Jury ; 

Mr. Brady, continued, ..... 270 

Mr. Evarts, ...... 283 

Trial. Sevkntii Day: 

Surnmings up of Counsel to the Jury : 

Mr. Evarts, continued, ..... 334 

Charge to the Jury, by Judge Nelson, . . . 368 

Keturn of the Jury and further instructions, . . 373 

Trial. Eighth Day : 

Discharge of the Juiy, ...... 375 

Appendix : 

President's Proclamation, April 15, 1861, . . . 377 

Proclamation of the President, declaring a Blockade, . . 378 

Con-espondence between Gov. Pickens and Major Anderson, 379 
Extracts from President Lincoln's Inaugural, . . .380 

The President's Speech to the Virginia Commissioners, . 381 
Extracts from President Lincoln's Message to Congress, July 4, 

1861, 382 

Extracts from President Buchanan's Message to Congress, De- 
cember 4, 1860, ...... 383 

Proclamation of August 16, 1861, .... 384 



PRELIMINARY PROCEEDINGS. 



DuriiDg the mouth of May, 1861, the schooner Savannah, 
of Charleston, of about fifty-three tons burden, and mounting 
one pivot gun, was fitted out as a privateer, in the City ol' 
Charleston ; and on the second of June, under the authority of 
" a paper, purporting to be a letter of marque, signed by Jef- 
ferson Davis," she sailed from that port for the purpose of 
making captures among the commercial marine of the United 
States. 

On the following day (Monday, June 3), after having cap- 
tured the brig Joseph, laden \yith sugar, she was, in turn, her- 
self taken by the United States brig-of-war Perry, Captain 
Farrott, and carried to the blockading squadron, oft' Charles- 
ton, to the commander of which (Commodore Stringham) she 
was surrendered by ber captors. 

On the fifth of June the ofiicers and crew of the Savannah 
were transferred from the Perry to the United States steam- 
frigate Minnesota, while the prize was taken in charge by a 
prize crew from the Perry and sent to New York. 

The Minnesota, with the prisoners on board, proceeded, on 
her way to New York, to Hampton Roads, wliere the prisoners 
were transferred to the steam-cutter Harriet Lane ; and thence, 
on board that vessel, they were conveyed to New York, at 
which port they arrived in the course of the montli of June. 

On the arrival of the Harriet Lane at New York, the 
prisoners were given in charge to the United States Marshal ; 
and, on application of the District Attorney of the United 
States, a warrant was issued, under which the prisoners were 
committed for trial. 

On the 16th of July following, the Grand Jury of the 
Federal Court, then sitting in this city, came into court and 
presented a true bill against the prisoners, a copy of which In- 
dictment is as follows : — 



VI PKELIMINARY PKOCEEDINGS. 



CIRCUIT COURT OP THE UNITED STATES OF AMERICA FOR 
THE SOUTHERN DISTRICT OF NEW YORK, IN THE SECOND 
CIRCUIT.* 

At a stated Term of the Circuit Court of the United States of Amei-ica 
for the Soutliern District of New York, in the Second Circuit, begun and 
held at the City of New York, within and for the District and Circuit afore- 
said, on the first Monday of April, in the year of our Lord 1861, and contin- 
ued by adjournments to the 26th day of June in the year last aforesaid : 

Southern District of New^ York, ss. : — The Jurors of the United States of 
America, within and for the District and Circuit aforesaid, on their oath, 
present : 

That Thomas Harrison Baker, late of the City and County of New York, 
in the District and Circuit aforesaid, mariner ; and John Harleston, late of the 
same place, mariner ; Charles Sidney Passalaigue, late of the same place, 
mariner ; Henry Cashman Howard, late of the same place, mariner ; Joseph 
Cruz del Carno, late of the same place, mariner ; Henry Oman, late of the 
same place, mariner ; Patrick Daly, late of the same place, mariner ; William 
Charles Clark, late of the same place, mariner ; Albert Gallatin Ferris, late 
of the same place, mariner ; Richard Palmer, late of the same place, mariner ; 
John Murphy, late of the same place, mariner; Alexander Carter Coid, late 
of the same place, mariner ; and Martin Galvin, late of the same place, mari- 
ner, on the 3d day of June, A. D. 1861, upon the high seas, out of the juris- 
diction of any particular State, and within the admiralty and maritime juris- 
diction of the said United States of America, and M'ithin the jurisdiction of 
this Court, did, with force and arms, piratically, feloniously, and violently set 
upon, board, break, and enter a certain vessel, to wit, a brig called the Joseph, 
the same being then and there owned in whole or in part, by a citizen or citi- 
zens of the United States of America, whose name or names are to the Jurors 
aforesaid unknown, and did then and there in and on board of the said brig, 
the Joseph, in and upon one Thies N. Meyer, then and there being a mariner, 
and then and there one of the ship's company of the said brig, the Joseph, 
and then and there master and commander thereof, and in and upon Horace 
W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin, 
and Joseph H. Golden, each then and there being a mariner and one of the 
ship's company of the said brig, the Joseph, piratically, feloniously, and vio- 
lently make an assault, and them did then and there piratically, feloniously, 
and violently, put in personal fear and danger of their lives, and did then 
and there, the brig, the said Joseph, of the value of $3,000, and the tackle, 
apparel, and furniture thereof, of the value of $500, and 250 hogsheads of 
sugar, of the value of $100 each hogshead, of the goods, chattels, and per- 
sonal property of certain persons whose names are to the jurors aforesaid 
unknown, the said 250 hogsheads of sugar being then and there in and on 
board of the said brig, and being then and there the lading thereof, and the 
said brig, the tackle, apparel, and furniture thereof, and the said 250 hogs- 
heads of sugar, being then and there in the care, custody, and possession 
of the said Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. 
Clanning, John J. Merritt, John Quin, and Joseph H. Golden, from the said 
Thies N. Meyer, Horace W. Bridges, Albert Nash, William H. Clanning, 
John J. Merritt, John Quin, and Joseph H. Golden, and from their said pos- 
session, care, and custody, and in their presence and against their will, vio- 
lently, piratically, and feloniously seize, rob, steal, take, and carry away 
against the form of the statute of the said United States of America in such 

* At the request of tlie United States District Attorney, the publishers state that the Indict- 
ment was mainly the wovic of Mr. John Sedgwick, of the New York bar. 



PEELIMINARY PROCEEDINGS. Vll 

case made and provided, and against the peace of the said United States and 
their dignity. 

Second Count: And the juroi's aforesaid, upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Har- 
leston, late of the same place, mariner ; Charles Sidney Passalaigue, late of 
the same place, mariner ; Henry Cashman Howard, late of the same place, 
mariner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry 
Oman, late of the same place, mariner ; Patrick Daly, late of the same place, 
mariner ; William Charles Clark, late of the same place, mariner ; Albert 
Gallatin Ferris, late of the same place, mariner ; Richard Palmer, late of the 
same place, mariner ; John Murphy, late of the same place, mariner ; Alex- 
ander Carter Coid, late of the same place, mariner ; and Martin Galvin, late 
of the same place, mariner, on the third day of June, in the year of our 
Lord 1861, upon the high seas, out of the jurisdiction of any particular 
State, and within the admiralty and maritime jurisdiction of the said United 
States of America, and within the jurisdiction of this Court, did, with force 
and arms, piratically, feloniously, and violently set upon, board, break, and 
enter a certain American vessel, to wit, a brig called the Joseph, the same 
then and there being owned, in part, by George H. Cables, John Cables, and 
Stephen Hatch, then citizens of the United State of America, and did then 
and there, in and on board of the said brig, the Joseph, in and upon one 
Thies N. Meyer, then and there being a mariner and one of the ship's com- 
pany of the said brig, the Joseph, and master and commander thereof, and 
in and upon divers other persons, each then and there being a mai-iner and 
one of the ship's company of the said brig, the Joseph, whose names are to 
the jurors aforesaid unknown, piratically, feloniously, and violently make an 
assault, and them did then and there piratically, feloniously, and violently 
put in bodily fear and danger of their lives, and did then and there, the said 
brig, the said Joseph, of the value of three thousand dollars, and the tackle, 
apparel, and furniture of the same, of the value of five hundred dollars, of the 
goods, chattels, and personal property of George H. Cables, John Cables, and 
Stephen Hatch, citizens of the United States of America, and two hundred 
and fifty hogsheads of sugar, of the value of one hundred dollars each hogshead, 
of the goods, chattels, and personal property of one Morales, whose Christian 
name is to the jurors aforesaid unknown, the said sugar being then and there 
in and on board of the said brig, the Joseph, and being then and there the 
lading thereof, and the said brig and the tackle, apparel, and furniture there- 
of, and the said two hundred and fifty hogsheads of sugar then and there 
being in the care, custody, and possession of the said Thies N. Meyer, and 
the said divers other persons, mariners, as aforesaid, and of the ship's com- 
pany of the said brig, the Joseph, and whose names are to the jurors afore- 
said unknown, from the said Thies N. Meyer and the said divers other per- 
sons, mariners, aforesaid, and of the ship's company of the said brig, the 
Joseph, whose names are, as aforesaid, to the jui'ors aforesaid, unknown, and 
fi"om their care, custody, and possession, and in their presence and against 
their will, piratically, feloniously, and violently, rob, seize, steal, take and 
carry away, against the form of the statute of the said United States of 
America in such case made and provided, and against the peace of the said 
United States and their dignity. 

Third Count: And the jurors aforesaid, upon their oath aforesaid, do fur- 
ther present : That Thomas Harrison Baker, late of the City and County of 
New York, in the District and Circuit aforesaid, mariner ; and John Harle- 
ston, late of the same place, mariner ; Charles Sidney Passalaigue, late of 
the same place, mariner ; Henry Cashman Howard, late of the same place, 
mariner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry 
Oman, late of the same place, mariner ; Pati-ick Daly, late of the same place. 



VIU PEELIMEtfART PEOCEEDINGS. 

mariner ; William Charles Clark, late of the same place, mariner ; Albert 
Gallatin Ferris, late of the same place, mariner ; Richard Palmer, late of the 
same place, mariner; John Murphy, late of the same place, mariner; Alex- 
ander Carter Coid, late of the same place, mariner ; and Martin Galvin, late 
of the same place, mariner, on the 3d day of June, A. D. 1861, upon the high 
seas, out of the jurisdiction of any particular State, and within the admiralty 
and maritime jurisdiction of the said United States of America, and within 
the jurisdiction of this Court, did, with force and arms, piratically, feloniously, 
and violently set upon, board, break, and enter a certain vessel, to wit : a 
brig called the Joseph, then and there being owned by certain persons, citi- 
zens of the United States of America, to wit : George H. Cables, John Cables, 
and Stephen Hatch, of Rockland, in the State of Maine, and in and upon cer- 
tain divers persons whose names ai'e to the jurors aforesaid unknown, the 
said last-mentioned persons each being then and there a mariner, and of the 
ship's company of the said brig called the Joseph, and then and there being 
in and on board of the said brig the Joseph, did then and there, piratically, 
feloniously, and violently make an assault, and them did then and there 
piratically, feloniously, and violently put in bodily fear, and the said brig, the 
Joseph, of the value of $?>,000 ; the apparel, tackle, and furniture thereof, of 
the value of $500 ; of the goods, chattels, and personal property of the said 
George H. Cables, John Cables, and Stephen Hatch, and 250 hogsheads of 
sugar of the value of $100 each hogshead, of the goods, chattels, and personal 
property of one Thies N. Meyer, from the said divers persons, mariners, as 
aforesaid, whose names are to the jurors aforesaid unknown, in their pres- 
ence, then and there, and against their will, did then and there piratically, 
feloniously, and violently seize, rob, steal, take, and carry away, against the 
form of the statute of the said United States of America in such case made 
and provided, and against the peace of the said United States and their 
dignity. 

Fourth Count: And the jurors aforesaid, upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Har- 
leston, late of the same place, mariner ; Charles Sidney Passalaigue, late of 
the same place, mariner ; Henry Cashman Howard, late of the same place, 
mariner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry 
Oman, late of the same place, mariner ; Patrick Daly, late of the same place, 
mariner ; William Charles Clark, late of the same place, mariner ; Albert 
Gallatin Ferris, late of the same place, mariner ; Richard Palmer, late of the 
same place, mariner ; John Murphy, late of the same place, mariner ; Alex- 
ander Carter Coid, late of the same place, mariner; and Martin Galvin, late 
of the same place, mariner, on the third day of June, in the year of our Lord 
one thousand eight hundred and sixty one, upon the high seas, out of the 
jurisdiction of any particular State, and within the admiralty and maritime 
jurisdiction of the said United States of America, and within the jurisdiction 
of this Court, did, with force and arms, piratically, feloniously, and violently 
set upon, board, break, and enter a certain vessel then and there being, to 
wit, a brig called the Joseph, and in and upon one Thies N. Meyer, then and 
there being in and on board of the said brig, and being a mariner and master 
and commander of the said brig, and the said Thies N. Meyer then and there 
being a citizen of the United States of America, did then and there piratically, 
feloniously, and violently make an assault, and him, the said Thies N. Meyer, 
did then and there piratically, feloniously, and violently put in great bodily 
fear, and the said brig, the Joseph, of the value of $8,000, and the tackle, ap- 
parel, and furniture thereof, of the value of $500, and 250 hogsheads of sugar, 
of the value of $100 each hogshead, the same then and there being of the lad- 
ing of the said brig, of the goods, chattels, and personal i)roperty of the said 
Thies N. Meyer, in his presence and against his will, did violently, felo- 



PKELIMINAEY PKOCEEDINGS. IX 

niously, and piratically rob, steal, seize, take, and carry away, against the 
form of the statute of the said United States of America in such case made 
and provided, and against the peace of the said United States and their 
dignity. 

Fifth Count: And the jurors aforesaid, upon their oath aforesaid, do fur- 
ther present : That Thomas Harrison Baker, late of the City and County of 
New York, in the District and Circuit aforesaid, mariner; and John Harleston, 
late of the same place, mariner ; Charles Sidney Passalaigue, late of the 
same place, mariner ; Henry Cashman Howard, late of the same place, 
mariner ; Joseph Cruz del Cainio, late of the same place, mariner ; 
Henry Oman, late of the same place, mariner ; Patrick Daly, late of the same 
place, mariner ; William Charles Clark, late of the same place, mariner ; 
Albert Gallatin Ferris, late of the same place, mariner ; Richard Palmer, late 
of the same place, mariner ; John Murphy*late of the same place, mariner ; 
Alexander Carter Coid, late of the same place, mariner ; and Martin Galvin, 
late of the same place, mariner, each being a citizen of the United States of 
America, on the 3d day of June, in the year of our Lord ISl'tl, upon the high 
seas, out of the jurisdiction of any particular State, and within the admiralty 
and maritime jurisdiction of the United States of America, and within the 
jurisdiction of this Court, in and upon one Thies N. Meyer, then and there 
being, the said Thies N. Meyer then and there being a citizen of the said 
United States, and he, the said Thies N. Meyer, then and there being in and on 
board of a certain American vessel of the United States of America, to wit, a 
brig called the Joseph, and the said brig then and there being on the high 
seas as aforesaid, did, piratically, feloniously and violently, make an assault, 
and him, the said Thies N. Meyer, did, piratically, feloniously and violently, 
then and there put in bodily fear, and the said brig, the Joseph, of the value 
of $3,000, the tackle, apparel and furniture of the same, of the value of $500, 
and 250 hogsheads of sugar, of the value of $100 each hogshead, of the goods, 
chattels and personal property of the said Thies N. Meyer, from the said 
Thies N. Meyer, and in his presence, and against his will, did, piratically, 
feloniously and violently, seize, rob, steal, take and carry away, against the 
form of the statute of the said United States of America in such case made 
and provided, and against the peace of the said United States and their 
dignity. 

Sixth Count: And the Jurors aforesaid, upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Harles- 
ton, late of the same place, mariner; Charles Sidney Passalaigue, late of the 
same place, mariner ; Henry Cashman Howard, late of the same place, mar- 
iner; Joseph Cruz del Carno, late of the same place, mariner ; Henry Oman, 
late of the same place, mariner; Patrick Daly, late of the same place, mar- 
iner; William Charles Clark, late of the same place, mariner; Albert Galla- 
tin Ferris, late of the same place, mariner ; Eichard Palmer, late of the same 
place, mariner; John Murphy, late of the same place, mariner; Alexander 
Carter Coid, late of the same place, mariner ; and Martin Galvin, late of the 
same place, mariner, on the 3d day of June, in the year of our Lord 1861, 
upon the high seas, out of the jurisdiction of any particular State, and with- 
in the admiralty and maritime jurisdiction of the said United States of Amer- 
ica, and within the jurisdiction of this Court, each then and there being a 
citizen of the said United States of America, did, on pretense of authority 
from a person, to wit, one Jefferson Davis, with force and arms, piratically, 
feloniously and violently set upon, board, break and enter, a certain vessel, 
to wit, a brig called the Joseph, the same being then and there owned, in 
whole or in part, by a citizen or citizens of the United States of America, 
whose name or names are to the Jurors aforesaid unknown, and did, on pre- 



X PEELIMINART PROCEEDINGS. 

tense of authority from a person, to wit, one Jefferson Davis, then and there 
in and on board of the said brig, the Joseph, in and upon one Thies N. Meyer, 
then and there being a mariner, and then and there one of the ship's 
company of the said brig, the Joseph, and then and there master and com- 
mander thereof, and in and upon Horace W. Bridges, Albert Nash, William 
H. Clanning, John J. Merritt, John Quin, and Joseph H. Golden, each then 
and there being a mariner and one of the ship's company of the said brig, the 
Joseph, piratically, feloniously and violently make an assault, and them did, 
on pretense of authority from a person, to vpit, one Jefferson Davis, then and 
there piraticfilly, feloniously and violently, put in personal fear and danger of 
their lives, and did, on pretense of authority from a person, to wit, one Jef- 
ferson Davis, then and there, the brig, the said Joseph, of the value of $3,000, 
and the tackle, apparel and furniture thereof, of the value of $500, and two 
hundred and fifty hogsheads of sygar, of the value of $100 each hogshead, of 
the goods, chattels and personal property of certain persons whose names are 
to the Jurors aforesaid unknown, the said two hundred and fifty hogsheads 
of sugar being then and there in and on board of the said brig, and being then 
and there the lading thereof, and the said brig, the tackle, apparel and furni- 
ture thereof and the said two hundred and fifty hogsheads of sugar, being 
then and there in the care, custody and possession of the said Thies N. 
Meyer, Horace W. Bridges, Albert Nash, WiUiam H. Clanning, John J. Mer- 
rit, John Quin and Joseph H. Golden, from the said Thies N. Meyer, Horace 
"W. Bridges, Albert Nash, William H. Clanning, John J. Merritt, John Quin 
and Joseph H. Golden, and from their said possession, care and custody, and 
in their presence and against their will, violently, piratically and feloniously, 
seize, rob, steal, take and carry away, against the form of the statute of the 
said United States of America in such case made and provided, and against 
the peace of the said United States and their dignity. 

Seventh Count : And the Jurors aforesaid upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Harles- 
ton, late of the same place, mariner ; Charles Sidney Passalaigue, late of the 
same place, mariner ; Henry Cashman Howard, late of the same place, mar- 
iner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry Oman, 
late of the same place, mariner ; Patrick Daly, late of the same place, mar- 
iner ; William Charles Clark, late of the same place, manner ; Albert Galla- 
tin Ferris, late of the same place, mariner ; Richard Palmer, late of the same 
place, mariner ; John Murphy, late of the same place, mariner ; Alexander 
Carter Coid, late of the same place, mariner ; and Martin Galvin, late of the 
same place, mariner, on the third day of June, in the year of our Lord one 
thousand eight hundred and sixty-one, upon the high seas, out of the juris- 
diction of any particular State, and within the admiralty and maritime juris- 
diction of the said United States of America, and within the jurisdiction of 
this Court, each then and there being a citizen of the said United States of 
America, did, on pretense of authority from a person, to wit, one Jefferson 
Davis, with force and arms, piratically, feloniously and violently set upon, 
board, break and enter a certain American vessel, to wit, a brig called the 
Joseph, the same then and there being owned in part by George H. Cables, 
John Cables and Stephen Hatch, then citizens of the United States of 
America, and did, on pretense of authority from a person, to wit, one Jefferson 
Davis, then and there in and on board of the said brig, the Joseph, in and 
upon one Thies N. Meyer, then and there being a mariner and one of the ship's 
company of the said brig, the Joseph, and master and commander thereof, 
and in and upon divers other persons, each then and there being a mariner, 
and one of the ship's company of the said brig, the Joseph, whose names are 
to the Jurors aforesaid unknown, piratically, feloniously and violently make 



PEELIMINAET PROCEEDINGS. XI 

an assault, and them did, on pretense of authority from a person, to wit, one 
Jefferson Davis, then and there, piratically, feloniously and violently, put in 
bodily fear and danger of their lives, and did, on pretense of authority from 
a person, to wit, one Jefferson Davis, then and there, the said brig, the said 
Joseph, of the value of $3,000, and the tackle, apparel and furniture of the same, 
of the value of $500, of the goods, chattels and personal property of George H. 
Cables, John Cables and Stephen Hatch, citizens of the United States of 
America, and two hundred and fifty hogsheads of sugar, of the value of $100 
each hogshead, of the goods, chatties and personal property of one Morales, 
whose Christian name is to the Jurors aforesaid unknown, the said sugar 
being then and there in and on board the said brig, the Joseph, and being 
then and there the lading thereof, and the said brig, and the tackle, apparel 
and furniture thereof, and the said two hundred and fifty hogsheads of sugar, 
then and there being in the care, custody and possession of the said Thies N. 
Meyer and the said divers other persons, mariners as aforesaid, and of the 
ship's company of the said brig, the Joseph, and whose names are to the 
Jurors aforesaid unknown, from the said Thies N. Meyer and the said divers 
other persons, mariners as aforesaid, and of the ship's company of the said 
brig, the Joseph, whose names are as aforesaid to the Jurors aforesaid un- 
known, and from their care, custody and possession, and in their presence 
and against their will, piratically, feloniously, and violently, rob, seize, steal, 
take and carry away, against the form of the statute of the said United States 
of America in such case made and provided, and against the peace of the said 
United States and their dignity. 

Eighth Count : And the Jurors aforesaid, upon their oath aforesaid, do 
further present: That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Harles- 
ton, late of the same place, mariner; Charles Sidney Passalaigue, late of the 
same place, mariner ; Henry Cashman Howard, late of the same place, mar- 
iner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry Oman, 
late of the same place, mariner ; Patrick Daly, late of the same place, mari- 
ner ; William Charles Clark, late of the same place, mariner ; Albert Gallatin 
Ferris, late of the same place, mariner ; Richard Palmer, late of the same 
place, mariner ; John Murphy, late of the same place, mariner ; Alexander 
Carter Coid, late of the same place, mariner ; and Martin Galvin, late of the 
same place, mariner, on the 3d day of June, in the j^ear of our Lord, 1801, 
upon the high seas, out of the jurisdiction of any particular State and within 
the admiralty and maritime jurisdiction of the said United States of America 
and within the jurisdiction of this Court, each then and there being a citizen 
of the said United States of America, did, on pretense of authority from a 
person, to wit, one Jefferson Davis, with force and arms, piratically, feloni- 
ously, and violently, set upon, board, break, and enter a certain vessel, to wit, a 
brig, called the Joseph, then and there being owned by certain persons, citi- 
zens of the United States of America, to wit, George H. Cables, John Cables, 
and Stephen Hatch, of Rockland, in the State of Maine, and in and upon cer- 
tain divers persons whose names are to the Jurors aforesaid unknown, the 
said last-mentioned persons each being then and there a mariner, and of the 
ship's company of the said brig called the Joseph, and then and there being 
in and on board of the said brig, the Joseph, did, on pretense of authority 
from a person, to wit, one Jefferson Davis, then and there, piratically, feloni- 
ously, and violently, make an assault, and them did, on pretense of author- 
ity from a person, to wit, one Jefferson Davis, then and there, piratically, 
feloniously, and violently, put in bodily fear, and the said brig, the Joseph, 
of the value of $3,000, and the apparel, tackle, and furniture thereof, of the 
value of $500, of the goods, chattels, and personal property of the said 
George H. Cables, John Cables, and Stephen Hatch, and 250 hogsheads of 



Xll PKELIMINARY PROCEEDINGS. 

sugar, of the value of $100 each hogshead, of the goods, chattels, and per- 
sonal property of one Thies N. Meyer, from the said divers persons, mariners 
as aforesaid, whose names are to the Jurors aforesaid unknown, in theu' pres- 
ence, then and there, and against their will, did, on pretense of authority 
from a person, to wit, one Jefferson Davis, then and there, piratically, feloni- 
ously, and violently, seize, rob, steal, take and carry away, against the form 
of the statute of the said United States of America in such case made and 
provided, and against the peace of the said United States and their dignity. 

Ninth Count : And the Jurors aforesaid, upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Har- 
leston, late of the same place, mariner ; Charles Sidney Passalaigue, late of 
the same place, mariner ; Henry Cashman Howard, late of the same place, 
mariner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry 
Oman, late of the same place, mariner ; Patrick Daly, late of the same place, 
mariner ; William Charles Clark, late of the same place, mariner ; Albert 
Gallatin Ferris, late of the same place, mariner ; Richard Palmer, late of the 
same place, mariner ; John Murphy, late of the same place, mariner ; Alex- 
ander Carter Coid, late of the same place, mariner; and Martin Galvin, late 
of the same place, mariner, on the 3d day of June, in the year of our Lord 
1861, upon the high seas, out of the jurisdiction of any particular State, and 
within the admiralty and maritime jurisdiction of the said United States of 
America, and within the jurisdiction of this Court, each then and there be- 
ing a citizen of the said United States of America, did, on pretense of au- 
thority from a person, to wit, one Jefferson Davis, with force and arms, pirat- 
ically, feloniously, and violently set upon, board, break, and enter a certain 
vessel then and there being, to wit, a brig called the Joseph, and in and upon 
one Thies N. Meyer, then and there being in and on board of the said brig, 
and being a mariner and master and commander of the said brig, and the 
said Thies N. Meyer then and there being a citizen of the United States of 
America, did, on pretense of authority from a person, to wit, one Jefferson 
Davis, then and there, piratically, feloniously, and violently, make an assault, 
and him, the said Thies N. Meyer, did, on pretense of authority from a per- 
son, to wit, one Jefferson Davis, then and there, piratically, feloniously, and 
violently, put in great bodily fear, and the said brig, the Joseph, of the value 
of $o,0U0, and the tackle, apparel, and furniture thereof, of the value of 
$500, and 250 hogsheads of sugar, of the value of $100 each hogshead, the 
same then and there being of the lading of the said brig, of the goods, chat- 
tels, and personal property of the said Thies N. Meyer, in his presence and 
against his will, did, on pretense of authority from a person, to wit, one Jef- 
ferson Davis, violently, feloniously, and piratically, rob, steal, seize, take, and 
carry away, against the form of the statute of the said United States of 
America in such case made and provided, and against the peace of the said 
United States and their dignity. 

Tenth Count : And the Jurors aforesaid, upon their oath aforesaid, do 
further present : That Thomas Harrison Baker, late of the City and County 
of New York, in the District and Circuit aforesaid, mariner ; and John Harles- 
ton, late of the same place, mariner; Charles Sidney Passalaigue, late of the 
same place, mariner; Henry Cashman Howard, late of the same place, mar- 
iner ; Joseph Cruz del Carno, late of the same place, mariner ; Henry Oman, 
late of the same place, mariner ; Patrick Daly, late of the same place, mar- 
iner ; William Charles Clark, late of the same place, mariner ; Albert Gallatin 
Ferris, late of the same place, mariner; Richard Palmer, late of the same 
place, mariner ; John Murphy, late of the same place, mariner ; Alexander 
Carter Coid, late of the same place, mariner ; and Martin Galvin, late of the 
same place, mariner, each being a citizen of the United States of America, 



PKELIMINAEY PEOCEEDINGS. Xlll 

on the 3d day of June, in the year of our Lord 1861, upon the high seas, 
out of the jurisdiction of any particular State, and within the admiralty and 
maritime jurisdiction of the United States of America, and within the juris- 
diction of this Court, in and upon one Thies N. Meyer, then and there being, 
the said Thies N. Meyer, then and there being a citizen of the said United 
States, and he, the said Thies N. Meyer, then and there being in and on board 
of a certain American vessel, of the United States of America, to wit, a brig 
called the Joseph, and the said brig then and there being on the high seas as 
aforesaid, did, on pretense of authority from a person, to wit, one Jefferson 
Davis, piratically, feloniously and violently, make an assault, and him, the 
said Thies N. Meyer, did, on pretense of authority from a person, to wit, one 
Jeiferson Davis, piratically, feloniously and violently, then and there put in 
bodily fear, and the said brig, the Joseph, of the value of $3,000, the tackle, 
apparel and furniture of the same, of the value of $500, and 250 hogsheads 
of sugar, of the value of $100 each hogshead, of the goods, chattels and per- 
sonal property of the said Thies N. Meyer, from the said Thies N. Meyor, and 
in his presence, and against his will, did, on pretense of authority from a person, 
to wit, one JefiFerson Davis, piratically, feloniously and violently seize, rob, 
steal, take and carry away, against the form of the statute of the said United 
States of America in such case made and provided, and against the peace of 
the said United States and their dignity. 

And the Jurors aforesaid, on their oath aforesaid, do further present: 
That the Southern District of New York, in the Second Circuit, is the dis- 
trict and circuit in which the said Thomas Harrison Baker, John Harleston, 
Charles Sidney Passalaigue, Henry Cashman Howard, Joseph Cruz del Carno, 
Henry Oman, Patrick Daly, William Charles Clark, Albert Gallatin Ferris, 
Richard Palmer, John Murphy, Alexander Carter Coid, and Martin Galvin, 
were brought and in which they were found, and is the district and circuit 
where they were apprehended, and into which they were first brought, for 
the sai(;l offense. 

E. DELAFIELD SMITH, 
y Attorney of the United States for the Southern District 

of New York. 



On Wednesday, the seventeenth of Jnly, the prisoners 
were brought into Court to plead to the Indictment, when 
Me. E. Delafield Smith, United States District Attorney, 
said : 

If the Court ^>Ze«5d, — In the case of Baker and others, the 
prisoners now at the bar, indicted for robbery on the high 
seas, I move that they be arraigned. I may here remark, that 
I have caused the service of a notice of this motion upon all 
the counsel known to me as engaged in the case ; and if any 
gentleman has not received a notification, the omission pro- 
ceeds from the fact that his name has not been given to the 
District Attorney. I understand that Mr. Larocque is counsel 
for one or two of the prisoners, and that he is in the building. 



Mr. La/tocque here entered the Court. 



XIV PKELIMINAEY PKOCEEDINGS. 

The District Attorney : I would now renew my motion 
that the prisoners at the bar be arraigned under the indict- 
ment presented yesterday. 

Mr. Larocque : If your honor please, I represent but one 
of the prisoners. There are other counsel, I believe, who re- 
present them generally. I appear for Mr. Harleston (the 
mate), and I will now state what I have to say with respect 
to the motion made by the District Attorney. Mr. Daniel 
Lord is associated with me, and I believe he is now engaged 
in the adjoining Court, but will soon be here. The Court will 
perceive that the learned District Attorney has very properly 
taken a considerable period of time for the framing of this in- 
dictment. It is some weeks now since the warrant of arrest 
was issued, and. the course which be has taken certainly de- 
serves great commendation ; for the indictment in this case, 
more than any other that has ever been found in this Court, 
required greater care in its preparation, and it is one which 
will certainly present more important questions than probably 
any that has ever been tried in this Court. The indictment 
was only presented yesterday, and, as far as I am concerned, 
I was only informed of its presentation late yesterday after- 
noon. Of course, I had no opportunity to examine it. I be- 
lieve it is quite a voluminous document, and contains a great 
many counts ; and before the prisoners at the bar would be 
prepared to plead to the indictment, it will certainly be neces- 
sary that their counsel should examine it with care, and determ- 
ine what course to take with regard to it ; and then, probably, 
there may be some application that it will be necessary to 
make to the Court before the prisoners will be prepared to 
plead. I therefore desire a postponement for that purpose, 
until we can have time to examine this indictment. 

The District Attorney : I doubt not it is proper that time 
should be given to examine this indictment, and to adopt 
such course with respect to it as gentlemen standing in the 
sacred relation of counsel may deem it their duty to take. I 
should be very glad, however, if that time could be, with 
due regard to the convenience of counsel, so near as that the 
pleas may be recorded and the trial set down for some day 
before the Court adjourns. I shall be ready, if your honor 
please, on behalf of the Government, to try the prisoners on 
any day. 1 shall be prepared to try them within two or three 
days ; but, certainly, it is right that counsel should have time 
to examine the indictment, as suggested. I hope only that 
such examination may be made speedily, as I understand your 
honor will adjourn the Court at an early day. 



PRELIMINARY PROCEEDINGS. XV 

Mr. Larocque : It would be utterly impossible for this case 
to be tried this term. lu conversation with the counsel for the 
Government, a few days ago, the gentleman himself declared 
that the case could not be tried this term of the Court, and it 
would be impossible, your honor, for us to be ready for trial 
during this term. It will be necessary for us to obtain testi- 
mony from abroad, out of the limits of this State, and that 
cannot be procured in time to try the case this term. Certain- 
ly, no interest of public justice can suffer by a delay of the 
trial of this case ; and I think it is eminently proper, and I 
am sure the Court will agree with me, that a proceeding of 
this importance should be conducted with deliberation, and 
that ample time should be given to the prisoners to prepare 
their defence. I had understood, moreover, that some intima- 
tion had been made by your honor's associate on the bench 
(Judge Nelson) that he would attend upon the trial of this 
case. I am told that Judge Nelson met with an accident 
shortly after his return home from his attendance upon his 
judicial duties, by being run away with by a horse, and that 
he is so lame that he is unable to move at present ; and I am 
very credibly assured that Judge Nelson has expressed his 
conviction that it was his duty to attend and to sit on the trial 
of this case. Very imjiortant questions of law will be pre- 
sented, and your honor is aware that in a criminal case in this 
Court there is no writ of error. The prisoner has the right to a 
review of any decision that might be made in this Court, in 
case a difference of opinion should arise between the Judges 
who preside. And certainly, in a case of such great import- 
ance as this is, where the lives of so many prisoners are at 
stake, it is of the utmost consequence that there should be a 
full Court present when the prisoners are tried. So far with 
respect to the trial of the case. Now, your honor is also aware 
that, by the statutes of the United States, the prisoners have a 
right to a certain period of time before any movement can be 
made with a view to trial. We certainly cannot be ready to 
plead to this indictment in less than a week. 

The District Attorney : The Court will permit a single re- 
mark concerning the conversation to which my learned friend 
has alluded. I ijever intended to say decidedly that the trial 
could not take place during the present term. I did, however, 
at one time, express an opinion that, as the term was nearly 
ended, and as the summer was upon us, probably I should not 
succeed in bringing the case on for trial until the autumn. 
As, however, the indictment has been promptly found, delay 
till fall is, I trust, unnecessary. Events continually taking 
place upon the ocean seem to render it important that the trial 



XVI PKELIMINARY PEOCEEDINGS. 

should take place at an early day. With these suggestions, 
I leave the matter entirely with the Court, where, of course, it 
ultimately belongs. 

J/r. Sullivan : May it please the Court, I appear for Cap- 
tain Baker, the iirst prisoner named in the indictment. 

Judge Shipman asked who appeared for the other prisoners. 
He wished to know if all the prisoners were supplied with 
counsel ; if not, he would assign them counsel. 

Mr. Sullivan said he did not desire a week's postponement, 
as he understood his honor had intimated that the Court would 
adjourn on Wednesday. As to the time of trial, he was 
authorized and instructed sjjecially to say for Captain Baker 
that he would ask for no delay other than what was absolutely 
necessary for his counsel to prepare. He (Mr. Sullivan) hoped 
that the Court would continue its session specially to hear the 
case, or at least to try some portion of the defendants. He 
made that remark on the presumption that the defendants 
would ask to be tried separately. 

Mr. Mayer said he appeared for one of the seamen, Wm. C. 
Clark ; and he concurred in Mr. Larocque's remarks. 

Judge Shijpman : It is hardly necessary now to discuss when 
the case will be set down for trial. The motion now before 
the Court is for the arraignment of the prisoners, and counsel 
asks for time to plead. I should like to know the names of the 
counsel who appear for the prisoners. 

Mr. Larocque said he appeared, in conjunction with Mr. 
Lord, for Mr. Ilarlestou. 

Mr. Hidgway appeared for the sailors Carno, Oman, 
Daly, Palmer, Murphy, Galvin, and Coid ; and he, also, con- 
curred in the motion for time to plead. 

Mr. Sandford appeared for All)ert G. Ferris, and desired 
that the trial should be brought on as speedily as possible. 

The District Attorney : I have a suggestion to make as to 
the time of pleading. With regard to the indictment, when 
counsel come to. examine it, I think they \^ill tind, that al- 
though the counts are numerous, yet, after all, the indictment 
is simple. 1 would suggest that counsel should examine the 
record between this and to-morrow morning, and then the 
prisoners could undoubtedly be arraigned without objection. 

Mr. Daniel Lord: I perceive tliat the prisoners are 
brought here to plead in chains. If that is to be repeated each 



PRELIMINARY PROCEEDINGS- XVll 

time they are brought here, I would* wish to have the time 
named when they are to plead. 

Mr. James T. Brady said that he believed the engagement 
under which he acted, in connection with some other gentle- 
men, covered the cases of all the accused who had not already 
been represented before his honor by distinct counsel. 

Judge Shipman : There is no necessity, then, for the Court 
to assign counsel ? 

Mr. Brady : In response to your honor, allow me to say 
that I represent Captain Baker more particularly. From the 
very necessity of this case a number of counsel have been em- 
ployed, and more, probably, than will take part, as your honor 
is well aware, in the trial. I have had the pleasure of confer- 
ring with Mr. Lord only once since this case arose ; and as he 
is in every respect the senior of the gentlemen who are em- ' 
ployed in the case, we should like an opportunity for confer- 
ence. It is highly important to determine what species of plea 
should be put into the indictment ; and while, as I remarked, 
all the counsel may not take a prominent part in the argument 
or the trial, yet their judgments ought to be considered by each 
other, and some decisive course concluded upon. There cer- 
tainly can be no great occasion for hurry, as these men are 
closely confined, and certainly are under the closest kind of 
restraint, from what I see around me (glancing at the prisoners, 
handcuflfed), I don't suppose there is any apprehension, even 
if the prison doors were opened, that they would be likely to 
escape, from the state of feeling which at present exists in this 
city and this section of the country. We only wish for time 
that is necessary to determine what kind of an answer to make 
to this indictment ; and after that we will proceed, I venture 
to say, with the utmost diligence, to have this case prepared 
for trial, or it may probably turn out that there will be no 
necessity for any trial. That may occur to a legal mind, or it 
may not. 

Judge Ship7nan : Well, let the prisoners be i*emanded until 
Tuesday morning next. 

The Court then adjourned. 

On Tuesday, the twenty-third of July, the prisoners were 
again brought into Court, and were placed within the bar, at 
the south end of the room. 

E. Delajield Smith, Esq., District Attorney, moved that the 
prisoners be arraigned. 



XVlll - PKELIMINAEY PKOCEEDINGS. 

Algernon S. SulUvMn) £^sq., of counsel for the prisoners, 
stated that all the prisoners were represented by counsel, and 
that they were acquainted with the charges contained in the 
indictment. 

The prisoners were ordered to stand up ; and the Clerk of 
the Court called T. Harrison Baker, saying : " You have been 
indicted for robbery on the high seas ; how do you plead— 
guilty, or not guilty ? " To which Mr. Baker replied, " Not 
guilty." 

The District Attorney suggested that the indictment be 
read to tlfb prisoners, unless each one of them expressly waived 
the reading. He would prefer to have it read, however. 

The prisoners' counsel respectively submitted that it was of 
no consequence. The accused knew the contents of it. 

Judge Shipmmi remarked that the reading of the indict- 
ment would consume some time ; but the District Attorney 
said that questions had been raised on this point, and, to in- 
sure reguhirity, he desired to have the indictment read ; where- 
upon the Court ordered the Clerk to read the instrument. 

At the conclusion of the reading, the prisoners severally 
pleaded, each for himself, " not guilty." 

Distriot Attorney Smith : If the Court please, the facts in 
this case are exceedingly simple. The evidence in reference 
to them — as well such as is required by the prosecution, as 
that which we may suppose to be desired by the defendants — 
is within a narrow range and easily attainable. I have exam- 
ined the testimony with care. There can be no doubt, upon 
the evidence in the case, that the prisoners are guilty, and that 
as a matter of law, as well as a matter of fact, they ought to 
be convicted. It is impossible to close our eyes to the facts 
relating to this case, as they bear upon what is daily taking 
place upon the high seas. The merchant marine of the coun- 
try is subjected to piratical seizure from day to day. Murder 
is the natural child of robbery, and we may daily expect to 
hear of bloodshed on the ocean, in attempting the execution 
of the purpose conceived by so many of our countrymen, to 
deal a death-blow to American commerce. 

It seems to me, that the ends of public justice require that 
I should urge upon your Honor the propriety and necessity of 
an early trial of this issue. If, peradventure, the prisoners are 
innocent, it can work no injury to them ; if guilty, they ought 
to be convicted, and in my judgment, the law ought to take its 



PRELIMINARY PROCEEDINGS. XIX 

course to the end, in order that an example may be set to 
those who are pursuing the species of marauding, of which I 
think the testimony will show the prisoners to have been 
guilty. 

I respectfully urge, that the trial be set down for Wednes- 
day, July 31st, a week from to-morrow. I may add that I 
shall be happy to render to the counsel for the prisoners every 
facility within my power for the presentation of all the facts. 
The plea of authority, which we can anticipate, is set forth in 
the indictment, and a copy of the letter of marque has been 
furnished to counsel for the defence. I can see no valid reason 
for postponing the trial ; none, certainly, in the present state 
of the country. 

Mr. Larocque said, it seemed to him the idea might have 
occurred to the District Attorney, that these men had not 
yet been convicted. The law presumed every man to be 
innocent until he was proved guilty. The counsel should 
not presume these men to be guilty until they were tried. 
There were questions of international law involved in this 
case which would be entitled to consideration. The coun- 
sel for the United States would learn that he had mis- 
understood the meaning of the statute under which these men 
were indicted. The prisoners' counsel were not ready. They 
required documentary evidence and witnesses to be procured 
from a distance. They could not be ready to go on at this 
term of the Court. He submitted that a cause of this magni- 
tude should not be disposed of so hurriedly. What had the 
prisoners to do with others on the ocean ? Did the counsel 
for the Government desire to hurry them to trial unprepared 
for the purpose of striking terror to those on the ocean ? He 
could not believe it to be so. 

Mr. Sullwan said the prisoners would not ask any further 
delay after procuring their testimony. Some of the evidence 
could not be obtained this side of Charleston, and it would be 
impossible to procure it under three or four weeks. The case 
involved the legal status between the United States and the 
seceded States. He opposed setting down the case for trial on 
next Wednesday. 

Mr. Davega, of counsel for the prisoners, also opposed the 
motion, reiterating the statements in relation to tlie testimony 
to be procured. 

Mr. Mayer called the attention of the District Attorney to 
the iifth count of the indictment, describing the prisoners as 
citizens of the United States. His client was a citizen of Ham- 



XX PEELIMINAEY PROCEEDINGS. 

burg, and he would not be ready to try the case in several 
weeks. 

Mr. Daniel Lord, in l.)ehalf of Mr. Harleston, said this case 
involved the lives of thirteen men. If the District Attorney 
supposed the law of the case was simple, he took a very differ- 
ent view of it from what that gentleman did. 

The District Attorney, in reply, said that in respect to the 
intimation of a necessity to refer to Charleston, it was a mat- 
ter of notoriety that the prisoners were in constant communica- 
tion with that city. Counsel were bound to disclose the nature 
of testimony required, that the Court might judge of the suffi- 
ciency of the reasons for a postponement. Much of it might 
be to facts which the prosecution would admit ; as, in refer- 
ence to the question of citizenship, there would be no diffi- 
culty in conceding the fact that certain of the prisoners were 
not citizens of the United States. He was not tenacious as to 
the very day named. Without throwing the case over to the 
fall term, the trial could be so fixed as to afford counsel ample 
opportunity to collect their proofs and examine the ques- 
tions of law involved. All the difficulties suggested to impede 
the trial were obstructions created by these defendants them- 
selves and their confederates, and it was in the nature of tak- 
iog advantage of their own wrong to seek a postponement be- 
cause of the existence of a state of things for which they were 
responsible. It had been said, thirteen lives are at issue. He 
would say that many more lives were at stake— lives, in his 
judgment, of far greater value— the lives of innocent officers 
and sailors in the merchant marine. The facts are simple. 
The law appears to be certain. There can be no defence here, 
the nature of which is not visible. The only justification for 
the piracy would seem to be the treason. If the prisoners 
ought justly to be convicted, such conviction should be speedy, 
in order to deter their confederates from expeditions partaking 
of the character of both treason and piracy. 

Judge 8hip7nan said, that he had no doubt in relation to the 
disposition to be made of this motion. The Court could not 
have several sets of rules to apply at will to the same class of 
cases ; and even if the Court had power to ado]3t a different 
rule in some criminal cases from that fixed in others of the 
same grade, it would be very questionable Avhether such power 
ought to be exercised. The law had made no distinction in 
regard to this class of criminal offences. Upon the statute 
book of the United States are various acts of Congress defining 
atrocious crimes punishable cai3itally ; and among these, is the 



PRELIMINARY PKOCEEDINGS. XXI 

crime of piracy, or robbery upon the high seas, for which the 
defendants are indicted. In all cases where parties are charged 
with criminal offences, and especially with capital crimes, it is 
customary to give the defendants a reasonable time for the 
preparation of their defence ; and the Court must always as- 
sume and act, so far as the technical proceedings are concerned, 
upon the presumption of innocence which the law always inter- 
poses. The Court cannot take into consideration many of the 
suggestions made by counsel for the Government or for the de- 
fence; and in disposing of this motion, I wish it to be distinctly 
understood that I do so just as I should in any other case of 
alleged robbery or piracy upon the high seas, where, if the de- 
fendants be convicted, they must suffer, according to the stat- 
ute, the penalty of death, I cannot look at other considera- 
tions, I cannot anticipate other defences. In the administra- 
tion of the criminal law, although the principles are usually 
very simple, and although, for aught I know, they may be as 
simple when applied to this case as to any other, yet in the ap- 
plication of those principles, there is often ground for difference 
of opinion. Courts that have been long regarded as entitled to 
very great respect for learning, discrimination, and experience, 
frequently differ as to the application of principles of law to 
particular cases. In view of this fact, in capital cases, it has 
been a rule usually adhered to in the United States Circuit 
Courts (which are so constituted by the Act of Congress that 
two Judges are authorized to sit) to have, if applied for, a full 
Court, so that the defendant might have the benefit, if I may 
so speak, of the chance of a division of opinion. For such 
division of opinion constitutes the only ground upon which the 
case can be removed to a higher Court for revision. In this 
view of the case, and upon the strenuous ajDplication of the de- 
fendants for the presence of a full Court, 1 certainly cannot 
deny the application consistently with my judgment of what 
is right and proper ; and I say this with a full recognition of 
the importance of this trial. I might add, it may be desirable 
for the Government, in the event of a certain determination of 
this case, that in the preliminary proceedings — the time fixed 
for trial and the constitution of the Court — there should be 
nothing to weaken the full and appropriate effect of such deter- 
mination. 

After some observations in regard to two exceptional cases 
— that of Gordon, on his first trial for engaging in the slave 
trade,* and the case of the parties convicted of murder on 

* The second trial of Gordon, resulting in a conviction, took place before a full 
Court, Mr. Justice Nelson sitting with Judge Shipman. 



XXll PRELIMINAKY PROCEEDINGS. 

board the ship " Gen. Parkhill," both cases having been tried 
before a District Judge sitting alone, the counsel for the defend- 
ant in each case making no request to have a full Court — Judge 
Shipman went on to say, that in consequence of Judge Nelson's 
engagements in another District, in September, and in view of 
his confinement with the effects of a fall from his carriage, 
which would prevent his sitting in August, he (Judge Nelson) 
could not probably hear this case until the October term. He 
therefore ordered the trial to be set down for the third Monday 
of October, at eleven o'clock. 

The prisoners were remanded to the custody of the Marshal, 
and their manacles, which had been removed while they were 
in Court, being replaced, they were taken to the Tombs. 



TRIAL 

OF THE 

OFFICERS AND CREW OF THE SCHOONER 
SAVANNAH, 

OiN THE CHARGE OF PIRACY. 



UNITED STATES CIRCUIT COURT, 

SOUTHERN DISTRICT OF NEW YORK. 

Wednesday, Oct. 23, 1861. 



The United States 
against 

Thomas Harrison Baker, 

Charles Sydney Passalaigue, 
John Harleston, 
Joseph Cruse del Carno, 
Patrick Daly, 
John Murphy, 
Martin Galvin, 
Henry Cashman Howard, 
Henry Oman, 
William Charles Clarke, 
Richard Palmer, 
Alexander Carter Coid, 
Albert G. Ferris. 
/ 



Hon. Judges NELSON and SHIPMAN Presiding. 

Counsel for the United States : 

E. DELAFIELD SMITH, WM. M. EVARTS, SAML. BLATCHFORD, 

ETHAN ALLEN. 



Counsel for the Defendants : 

BOWDOIN, LAROCQUES & BARLOW, DANIEL LORD, JAMES T. 
BRADY, ALGERNON S. SULLIVAN, JOSEPH H. DUKES, ISAAC 
DA VEGA, MAURICE MAYER. 



5J TKIAL OF THE OFFICERS AND CREW 

E. Delafield Smithy Esq., United States District Attorney, 
stated that he desired to use Albert Gallatin Ferris, one of the 
prisoners indicted, as a witness, and would therefore enter a 
nolle prosequi in regard to him. 

The Court : Are the prisoners to be tried jointly ? 

Mr. Lord : I believe so, sir. 

The ClerTi, called over the names of the prisoners, directing 
them to challenge the Jurors as called. 

Judge Nelson : Those of the prisoners who desire to do so 
may take seats by the side of their counsel. 

The ClerTi. proceeded to call the panel. 

Edward 'Werner called, and challenged for principal cause 
by Mr. Smith : 

Q. Have you any conscientious scruples that would prevent 
your finding a verdict of guilty, in a capital case, where the 
evidence was sufficient to convince you that the prisoner was 
guilty ? _4. No, sir. 

By Mr. Larocque, for the prisoners : 

Q. Have you read the account in the newspapers of the cap- 
ture of the Savannah privateers? A. Yes, sir. 

Q. Have you ever formed or expressed any opinion as to 
the guilt or innocence of these prisoners ? A. JSTo, sir. 

Q. Have you ever formed or expressed any opinion as to 
whether they were guilty of piracy, if the facts were as alleged ? 

A. No, sir. 

Challenge withdrawn. Juror sworn. 

William H. Marshall called, and challenged for principal 
cause : 

Q. Have you any conscientious scruples that would pre- 
vent your finding a verdict of guilty in a capital case, where 
the evidence was sufficient to convince you that the prisoner 
was guilty ? ^. No, sir. 

By Mr. Larocque, for the prisoners : 

Q. You read the account of the privateer Savannah ? 

A. I believe I have. 

Q. Have you formed or expressed any opinion as to the 
guilt or innocence of the prisoners ? A. No, sir. 

Q. Have you ever formed or expressed any opinion as to 
whether they were guilty of piracy, if the facts were as alleged ? 

A. I have not formed any opinion as to these men. 

Q. As to the general question, whetiier cruising under a 
commission from the Confederate States is piracy ? 

A. I do not think I have formed any opinion, or expressed 
one. 

Challenge withdrawn. Juror sworn. 



OF THE SCHOONER SAVANNAH. 3 

William Powell called, and challenged for principal cause 
oy Mr. Smith : 

Q. Have you any conscientious scruples that would pre- 
vent your finding a verdict of guilty, in a capital case, where 
tbe evidence was sufiicient to convince you that the prisoner 
was guilty ? A. No, sir. 

By Mr. Larocqiie, for the prisoners : 

Q. Have you formed or expressed any opinion as to the 
guilt or innocence of these jDrisoners? 

A. I have not formed any opinion that would prevent me 
from giving a verdict according to the facts of the case. I 
have read the account, and I presume have formed such an 
opinion as most men do from reading an account, if the facts 
be so and so. 

Q. Have you formed any opinion as to whether cruising, 
under a commissiun fiom the Confederate States, is piracy? 

A. Yes, sir, 1 have. 

Mr. Evarts objected that this was purely a question of law, 
and one jurors should not be inquired of 

The Court sustained the objection. 

Q. Did you believe the accounts which you read of this 
transaction ? 

A. Well, it is difficult to say. There is so much published 
in the papers now-a-days that is not correct, that I am hardly 
prepared to say I believe anything I see, without palpable evi- 
dence. I believe the fact of the capture of the Savannah. 

Q. Did you read what had been done by the Savannah be- 
fore she was captured ? 

A. Well, I formed no opinion with regard to that. 

Q. Did you form an opinion of the character of the act with 
which the defendants were charged ? A. No, sir. 

Q, Do you entertain the settled opinion that acting under a 
commission from President Davis, or the Confederate Govern- 
ment, constitutes piracy? 

Mr. Evarts objected that this was a question of law. 

The Court : I doubt whether that is a question that would 
be proper. 

Mr. Larocque : This is a very peculiar case, as your honor 
is well aware. It is a case of first impression in the courts of the 
United States. It is a case in which, probably, there will be very 
little difference between the prosecution and the defendants as to 
the mere facts which are charged in this indictment, and it is a 
case in which jurors who present themselves to be sworn, if they 
have any bias or prejudice whatever, have it rather in refer- 
ence to the character of the acts than as to the acts themselves 
having been committed or not having been committed. Now, 
we all know, if your honor please, that in all criminal trials a 



4 TKIAL OF THE OFFICERS AND CKEW 

great deal of discussion has always taken place with reference- 
to the jurisdiction of the jury over questions of law. The 
Courts have held that they are bound to receive their instruc- 
tions on the law from the Court ; but, at the same time, if they 
do not act in pursuance of the instructions which they receive, 
it is a matter between them and their own consciences, and it 
is a matter which no form of review in these Courts will reach. 
Kow, one of my associates has handed to me an authority upon 
this subject from 1st Baldwin's Reports — that on the trial of 
Haady, in 1832, for treason. Judge Grier held that a juror who 
had formed an opinion that the riots in question did not amount 
to treason, was incompetent ; and, in the case of the United 
States V. Wilson, it was held that a juror was incompetent who 
stated, on being challenged, that he had read the newspaper 
account of the facts at the time, and had come to his own con- 
clusion, and had made up his mind that the offence was trea- 
son, although he had not expressed that opinion, nor formed or 
expressed an opinion that the defendant was or was not engaged 
in the otfeuce. It seems to me that these authorities cover 
precisely the case before the Court, the only difference being 
that this is a charge of piracy, and the other a charge of treason. 

Judge Nelson : The only difference is that there the question 
was put to the juror as to the crime, after it appeared he had 
read the account of the transaction, which involved both the 
law and the facts — involved the whole case ; but as we under- 
stand your question, you put a pure question of law, which we 
do not think belongs to the juror. 

Mr. Larocque : I understand your honor to rule the question 
is not admissible. 

Judge Nelson : Yes. 

Defendants' Counsel took exception. 

Mr. iMrocgue : Permit me to put the question in two forms. 

Q. Have you formed or expressed the opinion that the acts 
charired, if proved, constitute the offence of piracy ? 

The Court : That question is admissible. 

A. I have not expi*essed the opinion, and I can hardly say 
I have formed an opinion, because I am not sufficiently in- 
formed on the law to do so. 

Challenge withdrawn. Juror sworn. 

The Court : Then the other form of the question is with- 
drawn ? 

Mr. Larocque: Yes, sir ; we are satisfied with the form of 
the question the Court allows us to put. 

James Cassidy called. Challenged for principal cause, by 
Mr. Larocque, for the defendants. 

Q. Did you read the account of the capture of the Savan- 
nah privateer ? A. I believe I did. 



OF THE SCHOONER SAVANNAH. 5 

Q. Have you formed or expressed any opinion upon the 
guilt or innocence of these prisoners ? 

A. I believe not, sir. I may have made some mention of it 
at the time of reading the transaction, but not to express any 
opinion. 

Q. Have you formed or expressed an opinion whether the 
facts, if proved, constitute the oifence of piracy? A. No, sir. 

By Mr. Smith : 

Q. Have you any conscientious scruples on the subject of 
capital punishment that would interfere with your rendering 
a verdict of guilty, if the evidence proved the prisoners to be 
guilty ? A . No, sir. 

Challenge withdrawn. Juror sworn. 

Joel W. Poor called. Challenged for principal cause by 
Mr. Smith: 

Q. Have you any opinion on the subject of capital punish- 
ment which would prevent your rendering a verdict of guilty, 
if the evidence was such as to satisfy you? A. No, sir. 

By Mr. Larocque, for the prisoners: 

Q. Have you read the account of the capture of the Savan- 
nali privateers '( A. 1 have. 

Q. Have you formed or expressed any opinion as to the 
guilt or innocence of the prisoners 1 A. 1 think not, sir. 

Q. Have you formed or expressed any opinion whether 
the facts charged, if proved, constitute the offence of piracy? 

A. I have not. 

Q. Have you never conversed on this subject? 

A. I do not think I have. 

Q. Have you no recollection of having conversed upon it 
at all ? 

A. I may have talked about it something at the time, but 
I do not recollect. 

Q. Are you a stockholder, or connected with any marine 
insurance company ? A. No, sir. 

Q. Have you been engaged in Northern trade ? A. No, sir. 

C%allenged joeremptorily, by prisoners. 

Thomas Dugan called. Challenged fur principal cause, by 
Mr. Smith : 

Q. Have you any conscientious scruples that would inter- 
fere with your rendering a verdict of guilty, if you deemed the 
prisoners guilty upon the evidence ? 

A. I have strong conscientious scruples. 

Mr. Smith asked that the juror stand aside. 

Defendants' Counsel objected to the question, as not proper 
in form. Objection sustained. 



6 TRIAL OF THE OFFICERS AND CREW 

Q. In a capital case, where tlie evidence is sufficient 
to satisfy your mind of the prisoner's guilt, have you any con- 
scientious scruples that would prevent your finding a verdict 
of guilty ? 

A. If I may explain, I would endeavor to find a verdict ; 
but I believe my sympathy would control my judgment to 
that extent that I would not be able to do my duty between 
the people and the prisoner. I have been on a jury before, 
and I doubt that my judgment would be controlled by my 
sympathy. 

Mr. Zarocque : The witness has not said his sympathies 
would be of that strength that would prevent his finding a ver- 
dict of guilt}'', if the evidence was satisfactory. A juror that 
has doubts of himself is the most honest and reliable, according 
to all experience in criminal trials. 

The Court : Examine him on that point. 

By Mr. Larocque : 

Q. Suppose that upon this trial the facts charged in this 
indictment were proved by clear and satisfactory evidence, and 
the Court should instruct you, upon that evidence, that those 
facts constitute the offence of piracy, would your conscientious 
scruples be so strong as to prevent your finding a verdict of 
guilty in such a case as that? 

A. There must be not a shadow of doubt. It must be 
strong and conclusive in my mind before a verdict is rendered. 

Q. But where there was strong, conclusive evidence, you 
would render a verdict of gnilty? A. Yes, sir, 

Mr. Evarts : It is pretty apparent that the juror does not 
regard liimself as in a position to deal impartially with this 
question, which involves human life. The intention of this 
cause of challenge is, that the juror should be in a position to 
yield to the evidence that just assent which its character is en- 
titled to call for, unimpeded by his repugnance to the result 
when fatal to human life. Still, if your honor should not think 
that upon this ground he ought to be excluded absolutely, cer- 
tainly it would be consistent with the course of practice, and 
with the just feeling of the juror, that he should stand aside 
until the panel be made up. 

Mr. Brady : That practice I understand not to prevail any 
longer, since it has been provided that the empanneling of jurors 
in the United States Courts shall be the same as in the State 
Courts, and we do not consent to any such principle as the 
gentleman proposes. Your honor has decided that a juror, to 
disqualify him from serving in a capital case, must say that his 
conscientious scruples are of such a character that, though the 
evidence be clear and conclusive under the law, as stated by 
the Court, they would prevent his doing liis duty and giving a 
verdict of guilty. To my mind, nothing can be more clear and 



OF THE SCHOONER SAVANNAH. 7 

satisfactory than the statement of the juror himself, which ex- 
hibits a state of mind that should be possessed by every juror ; 
that is, that he must be satisfied beyond all reasonable doubt 
of the guilt of the accused before rendering a verdict of guilty; 
and when he speaks of his sympathy on behalf of human, life, 
it is only that sympathy which the law recognizes where it 
gives the prisoner the benefit of every doubt. It is true he 
does use the expression that there must not be the shadow of a 
doubt ; but when the Court comes to expound the law, he will 
be instructed that it must be a reasonable doubt. 1 do not see 
anything against tlie juror on the ground of conscientious 
scruples. Your honor knows that the prosecution have no per- 
emptory challenge in cases of piracy or treason, and the old 
practice of setting aside jurors until the panel is exhausted, and 
then, if not able to make up twelve without the rejected jurors, 
requiring their acceptance, has passed. That is decided in the 
case of Shackleford, in 18 Howard's Reports. 

The Court (to the Juror) : We do not exactly comprehend 
the views you entertain upon this question ; therefore we 
desire, for our own eatisfaction, to put some questions to jou, to 
ascertain, if we can, the state of your mind and opinions upon 
these questions, and see whether you are a competent juryman 
or not in a capital case. It is a very high duty, and a common 
duty, devolving upon every respectable citizen. The question 
is this — and we desire that there may be no delusion or misap- 
prehension on your mind in respect to it — in a capital case, if 
the proof on behalf of the Government should be such as to 
satisfy your mind that the prisoner was guilty of the capital 
offence, whether or not you have any conscientious scruples 
as respects capital punishment, that would prevent your ren- 
dering a verdict of guilty ? 

A. In answer to that I would say that this is what troubles 
me : I want to do my duty ; I want to render a verdict fairly 
and squarely as between the prisoner and the people ; but 1 
have this to contend with — I have read that people have been 
convicted upon the clearest testimony, and afterwards found to 
be innocent ; and before I would have such feelings I would as 
soon go to the scaftuld as send a person there who was not 
guilty. Therefore my sympathy is so strong that I am afraid 
to trust myself. I did serve on a former occasion, and I do not 
know that even then I did my duty. 

Q. What do you mean by being afraid to trust yourself? Is it 
a conscientious feeling and opinion against the penalty of 
capital punishment ? 

A. Yes, sir, it is. I have a great abhorrence of it, if I may 
so express myself. Yet I would like to render a verdict, and 



8'. TRIAL OF THE OFFICERS AND CREW 

do what is right ; but I believe my feelings are too great to 
trust myself. 

The Court: We think we are bound to set the juror aside. 

Mr. Larocque : Permit me to put one question. 

Q. It strikes me that you are a little at fault as to what the 
purport of this question is. It is not whether you have an ab- 
horrence of convicting a prisoner of a capital offence. The 
question is, whether you have such conscientious scruples 
against capital punishment as would prevent your finding the 
prisoner guilty, if the facts were proved, and the Court in- 
structed you that those facts constituted the offence ? 

A. I answered before. It places me in rather a peculiar 
position. As I said, I want it understood distinctly, I desire 
to do my duty ; but there is a struggle between that and my 
sympathy, and I am afraid to trust myself. 

Q. But you can draw a distinction between your sympathy 
and any conscientious scruples against the punishment of 
death, can you not ? 

A. Well, sir, where it comes to the point 

Q. Allow me to put the question in another way: If you 
are entirely satisfied, upon the evidence and instructions of the 
Court, that the prisoner was guilty, your conscience would not 
trouble you in finding him guilty ? 

A. Well, sir, there would be this : I would feel that persons, 
under the strongest kind of testimony, have been found guilty, 
wrongfully, and it would operate on me — the fear that I had 
judged wrong on the facts, and committed murder. That feel- 
ing is very strong. 

Q. If the evidence satisfied you that the prisoner was 
guilty, would your conscience prevent your saying so? 

A. It would not now. It might in the jury-room. When 
it comes to the point, and I feel that I hold the life of a human 
being, it is pretty hard to know what I would do then. 

Q. Your conscience would only trouble you if you doubted 
that your judgment was right? A. Yes, sir. 

Mr. Larocque : I submit that the juror is competent. 

Juror: You must take your chances if you take me. I still 
think I am not fit to sit on a jury to represent the people.^ 

The Court : I think we must take the opinion of the juror 
as against himself. 

Set aside. [Defendants took exception.] 

John Fife called, and challenged for principal cause : 
Q. In a capital case, where the evidence is sufficient to con- 
vince you of the guilt of the prisoner, have you any con- 
scientious scruples that would prevent your finding a verdict of 
guilty ? A. No, sir. 



OF THE SCHOONER SAVANNAH. 9 

By Mr. Larocque^ for the prisoners : 

Q. Did you read tlie account of the capture of the privateer 
Savannah ? ^. I did. 

Q. Have you formed or expressed an opinion us to the 
guilt or innocence of the prisoners ? 

A. I beheve not, sir. 

Q. Have you formed or expressed an opinion whether the 
facts charged, if proved, constitute the offence of piracy ? 

A. I have not, sir. 

Q. You think you have no bias or prejudice in this case ? 

A. No, sir. 

Challenge withdrawn. Juror sworn. 

Thomas Costello called. Challenged for principal cause. 

By Mr. Smith : 

Q. In a capital case, where the evidence is sufficient to con- 
vince you of the guilt of the prisoner, have you any conscien- 
tious scruples that would prevent your finding a verdict of 
guilty ? A. No, sir. 

By Mr Larocque, for the prisoners : 

Q. You know that this case is an indictment for piracy 
against the prisoners. Have you formed or expressed any 
opinion upon their guilt or innocence ? A. No, sir. 

Q. Have you formed or expressed any opinion whether the 
facts charged against them, if proved, constitute the offence of 
piracy ? A. 1 have not, sir. 

Challenge withdrawn. Juror sworn. 

Tuganhold Kron called. Challenged for principal cause. 

By Mr. Smith : 

Q. In a capital case, where the evidence was sufficient to 
convince you of the guilt of the prisoner, have you any con- 
scientious scruples that would prevent your finding a verdict 
of guilty ? 

A. Yes, sir. (Question repeated.) A. No, sir. 

Q. Do you readily understand English ? A. Pretty welL 

Q. You did not understand me when I asked the question 
the first time ? A. No, sir. 

Q. Do you understand English well? 

A. Yes, pretty well. There may be some words I do not 
understand. 

Q. Did you ever sit as a juror on a trial? A. Yes, sir. 

Q. Did you understand all the witnesses said ? 

A. No, because I did not hear, sometimes. 

Q. Do you think you understand English well enough, so 
that you can hear a trial intelligeutly ? 

A. I cannot say, sir. 



10 TRIAL OF THE OFFICERS AND CREW 

Q. You are not sure ? A. No, sir. 

By Mr. Larocque : 

Q. What is your occupation? J.. A bookbinder. 

Q. Have you an establishment of jour own ? A. Yes, sir. 

Q. The men you employ — do they speak English or 
German ? 

A. Some English — the most of them German. 

Q. And you transact your business with gentlemen who 
speak English? A. Yes, sir. 

Q. How long have you done so? A. Eight years. 

By the Court : 

Q. How long have you been in this country ? 

A. Seventeen years. 

Q. Have you been in business all that time ? 

A. I worked as journeyman ten years, and have been seven 
years in business of my own. 

By Mr. Smith : 

Q. Do you think you can understand English well enough so 
that you can, from the evidence, form an opinion of your own? 

A. I think I will. 

By Mr. Larocque : 

Q. You read the account of the capture of the privateer 
Savannah in the newspapers? 

A. Yes, sir; in some German paper. 

Q. Did you form or express any opinion as to the guilt or 
innocence of these prisoners? A. No, sir. 

Q. Did you form or express an opinion whether the facts 
charged against them, if proved, constitute the offence of 
piracy ? A. No, sir. 

Mr. Evarts : We think the juror's knowledge of the 
language is shown, by his own examination, to be such as 
should at least entitle the Government to ask that he should 
stand aside until it is seen if the panel shall be filled from other 
jurors — if that right exists. Your honor held, in the case of 
the United States v. Douglass — a piracy case tried some ten 
years ago — that that right did exist. 

The Court : I think we have since qualified that in the case 
of Shackleford. It was intended to settle that debatable ques- 
tion, and it was held that the Act of Congress, requiring the 
empanneling of jurors to be according to the practice in State 
Courts, did not necessarily draw after it this right of setting 
aside. We tliink the objection taken is not sustained. 

Juror sworn. 

Matthew P. Bogart called. Challenged for principal cause 
by Mr. Smith : 

Q. In a capital case, where the evidence is sufficient to con- 



OF THE SCHOONER SAVANNAH. 11 

vinceyou of the guilt of the prisoner, have yon any conscien- 
tious scruples that would prevent your rendering a verdict of 
guilty? A. No, sir. 

£y Mr. Larocque^ for the prisoners : 

Q. Have you read the account of the capture of the priva- 
teer Savannah in the newspapers? 

A. I recollect reading it at the time — not since. 

Q, Have you ever formed or expressed, an opinion upon the 
guilt or innocence of these prisoners ? 

A. Not to nay recollection. 

Q. Have you ever formed or expressed an opinion whether 
the facts charged against them, if proved, constitute the offence 
of piracy? A. I have not. 

Challenge withdrawn. Juror sworn. 

George MoelUr called. Challenged for principal cause by 
Mr. Smith : 

Q. In a capital case, where the evidence is sufficient to 
convince you of the guilt of the prisoner, have you any con- 
scientious scruples that would prevent your finding a verdict 
of guilty? ^. No, sir. 

By Mr. Larocque, for the prisoners : 

Q. Have you read the account of the capture of the Savan- 
nah ? A. Yes, sir. 

Q. Have you formed or expressed any opinion as to the 
guilt or innocence of these prisoners? A. No, sir. 

Q. Have you formed or expressed any opinion as to whether, 
if the facts were proved, as alleged, it was piracy ? 

A. I do not know what the facts are, sir. I have only read 
an account of the capture. 

Challenge withdrawn. Juror sworn. 

Bohert Taylor called. Challenged for principal cause, by 
Mr. Smith : 

Q. In a capital case, where the evidence is sufficient to con- 
vince you of the guilt of the prisoner, have you any conscien- 
tious scruples that would prevent your finding a verdict of 
guilty ? A. No, sir. 

By Mr. Larocque^ for the prisoners : 

Q. You read of the capture of the privateer Savannah ? 

A. I think I have. 

Q. Did you form or express any opinion as to the guilt or 
innocence of the prisoners? A. Not that I know of, sir. 

Q. Have you formed or expressed any opinion whether the 
facts, if proved, constitute the offence of piracy ? 

A. No, sir, not any. 

Challenge withdrawn. Juror sworn. 



12 TRIAL OF THE OFFICEKS AND CKEW 

Daniel Bixby called. Challenged for principal cause, \>j 
Mr. Smith : 

Q. In a capital case, where the evidence is sufficient to 
convince you of the guilt of the prisoner, have you any con- 
scientious scruples that would prevent your finding a verdict 
of guilty? A. I have not. 

£y Mr. Larocque : 

Q. Have you ever formed or expressed any opinion as to 
the guilt or innocence of the prisoners? A. I have not. 

Q. Or whether the facts, if proved, constitute the offence of 
piracy? A. No, sir. 

Challeuge withdrawn. Juror sworn. 

Ira L. Cady called. Challenged for principal cause, by Mr. 
Smith : 

Q. In a capital case, where the evidence is sufficient to 
convince you of the guilt of the prisoner, have yoii any con- 
scientious scruples that would prevent your finding a verdict 
of guilty ? A. No, sir. 

By Mr. Larocque : 

Q. You know what this case is for? 

A. I believe I understand it. 

Q. An indictment of piracy against the privateersmen cap- 
tured on the Savannah ? A. Yes, sir. 

Q. Have you formed or expressed any opinion upon the 
guilt or innocence of the prisoners ? 

A. I do not recollect that I have. 

Q. Have you formed or expressed any opinion whether the 
facts, if proved, constitute piracy ? ^. I do not think I have. 

Q. Have you any opinion now upon either of these subjects ? 

A. I cannot say that I am entirely indifferent of opinion on 
the subject, but still I have not formed any definite opinion. 

Q. Your mind, however, is not entirely unbiased upon the 
question ? 

A. Well, no, sir — not if I understand the question ; that is, 
the question whether the facts, if proved, constitute the offence 
of piracy? 

Mr. Larocque submitted that the juror was not indifferent. 

Mr. Evarts : All that has been said by the j uror is that, on 
the question of whether the facts charged constitute the offence 
of piracy, he has no fixed opinion ; but he cannot say he has no 
opinion on the subject. He is ready to receive instruction from 
the Court. 

Mr. Larocque contended that, as the question of whether the 
facts alleged constituted piracy, or not, was a most important 
one to be discussed, they were entitled to have the mind of the 
juror entirely blank and unbiased on that subject. 



OF THE SCHOONER SAVANNAH. 15 

The Court: Let us see what the state of mind of the 
juror is. 

Q. You mentioned, in response to a question put to you, 
that you had read an account in the newspapers of the capture 
of this v^essel. 

A. I was not asked that question. I have no mind made 
up in respect to the subject that would prevent my finding a 
verdict in accordance with the evidence; but I said I was not 
entirely devoid of an opinion in regard to the case — that is, the 
often ce. 

Q. Have you read an account of the capture of this vessel ? 

A. Yes, sir ; 1 read it at the time. 

Q. Is it from the account, thus read, of the transaction of 
the capture, that you found this opinion upon ? 

A. No, sir ; it is not that. It is upon the general subject 
that I mean to be understood — not in reference to this case par- 
ticularly. 

Q. Do you say, upon the general question, that you have an 
opinion ? 

A. Well, not fully made up. I have the shadow of an opin- 
ion about it. 

Q. Not a fixed opinion ? 

A. No, sir; I would be governed by the law and in- 
structions of the Court. 

Q. You are open to the control of your opinion upon the 
facts and law as developed in the course of the trial ? 

A. Certainly, sir. 

TJie Court : We do not think the objection sustained. 

Challenged peremptorily by the prisoners. 

Samuel Mudget called. Challenged for principal cause. 

By Mr. Smith : 

Q. In a capital case, where the evidence is sufficient, in 
your opinion, to convict the prisoner, have you any conscien- 
tious scruples that would prevent your finding a verdict of 
guilty? A. I have not*. 

l^y Mr. Larocque : 

Q. You have read the account of the capture of the privateer 
Savannah? A. Yes, sir ; at the time. 

Q. Have you formed or expressed any opinion upon the 
guilt or innocence of these privateersmen ? A. I have not. 

Q. Have you formed or expressed an opinion whether the 
acts charged upon them, if proved, constitute piracy? 

A. No, sir ; I have not formed any opinion with regard to 
the question whether it was piracy or not. 

Challenged peremptorily by the prisoners. 



14 TRIAL OF THE OFFICERS AND CREW 

George H.Hansell challenged for principal cause. 

Q. In a capital case, where the evidence is sufficient to 
convince you that the prisoner was guilty, have you any con- 
scientious scruples that would prevent your finding a verdict 
of guilty ? 

A. iSTo, sir. 

By Mr. Larocque : 

Q. Have you read the account of the capture of the Savan- 
nah privateer ? 

A. I believe I read the account at the time. I have a very 
indistinct recollection of it. 

Q. Have you formed or expressed an opinion as to the guilt 
or innocence of the prisoners? 

A. I do not remember that I have, sir. I certainly do not 
have any opinion now; and certainly would not have until I 
have heard the evidence. 

Q. Do 3'ou say you do not recollect whether you have 
formed or expressed any opinion ? 

A. I do not remember that I have, sir, I may, on reading 
the article, have expressed an opinion on it ; but I am not posi- 
tive of that. 

Q. Have you formed or expressed an opinion whether the 
facts charged, if proved, amount to piracy? 

A. I should not consider myself competent to form an opin- 
ion upon that until I have heard the law on the subject. 

Challenge withdrawn. Juror s%oorn. 

Panel completed. 

DISTKICT ATTOKNEY'S OPENING. 

Mr. E. Delafield Smith opened the case for the prosecution. 
He said : 

May it please the Court, and you, Gentlemen of the Jury : 

The Constitution of the United States, in the eighth section 
of tbe first article, authorized the Congress, among other things, 
to define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations. 

In pursuance of that authority, the Congress, on the 80th of 
April, 1790, made provisions contained in an act entitled " An 
Act for the punishment of certain crimes against the United 
States." I refer to the 8th and 9th sections of that act, which 
is to be found in the first volume of the U. S. Statutes at Large, 
page 112. 

In the State Courts, gentlemen, it is common to say that the 
jury is judge both of the law and the fact; but such is not 
the case in the United States Courts. The Court will state to 



OF THE SCHOONER SAVANNAH. 15 

you the law, which you are morally bound to follow. But in 
■opening this case, I refer to the statutes for the purpose of 
showing you precisely what the law is supposed to be under 
which this indictment is found, and under which we shall ask 
you for a verdict. 

The 8th section of the act of 1Y90, commonly called " The 
Crimes Act," and to which I have just referred, declares, that 
if any person or persons shall commit, upon the hi^h seas, or 
in any river, haven, basin, or bay, out of the jurisdiction of any 
particular State, murder or robbery, or any other offence which, 
if committed within the body of a county, would, by the laws 
of the United States, be punishable with death ; or if any cap- 
tain or mariner of any ship or other vessel shall piratically and 
feloniously run away with such ship or vessel, or any goods or 
merchandize to the value of fifty dollars, or yield up such ship 
■or vessel voluntarily to any pirate ; or if any seaman shall lay 
violent hands upon his commander, thereby to hinder and pre- 
vent his fighting in defence of his sliij) or goods committed to 
his trust, 0^ shall make a revolt in the ship ; every such off'ender 
shall be deemed, taken, and adjudged to be a pirate and felon, 
and, being thereof convicted, shall sufi^er death; and the trial 
of crimes committed on the high seas, or in any place out of 
the jurisdiction of any particular State, shall be in the district 
where the ofi'ender is apprehended, or into which he may first 
be brought. 

The 9th section of the same act provides, that if any citizen 
shall commit any piracy or robbery aforesaid, or any act of 
hostility against the United States, or any citizen thereof, upon 
the high sea, under color of any commission from any foreign 
prince or state, or on pretence of authority from any person, 
such off'ender shall, notwithstanding the pretence of any such 
authority, be deemed, adjudged, and taken to be a pirate, felon, 
and robber, and, on being thereof convicted, shall suffer death, 
A statute, on this subject, enacted in 1819, expired by its 
own limitation ; but on the 15th of May, 1820, an act was passed 
making further provisions for punishing the crime of piracy. 
This law is printed in the third volume of the U. S. Statutes at 
Large, page 600. The 3d section provides, that if any person 
shall, upon the high seas, or in any open roadstead, or in any 
haven, basin, or bay, or in any river where the sea ebbs and 
ffows, commit the crime of robbery in or upon any ship or 
vessel, or upon any of the ship's company of any shi]) or vessel, 
or the lading thereof, such person shall be adjudged to be a 
pirate ; and, being thereof convicted before the Circuit Court 
of the United States for the district into which he shall be 
brought, or in which he shall be found, shall suffer death. 

I now refer to the act of March 3d, 1825, to be found in the 



16 TRIAL OF THE OFFICERS AND CREW 

4th volume of the Statutes at Large, page 115. It is entitled, 
"An act more effectually to jjrovicle for the punishment of certain 
crimes against the United States, and for other purposes." I 
cite it simply on the question of jurisdiction. The 14th section 
provides, that the trial of all offences which shall be committed 
upon the high seas or elsewhere, out of the limits of any State 
or district, shall be in the district where the offender is appre- 
hended, or into which he may be lirst brought. The twenty- 
fifth section of this act repeals all acts, or parts of acts, incon- 
sistent therewith. 

Under the act of 1Y90 a question of construction arose, in 
the Supreme Court of the United States, as to whether robbery 
on the high seas was punishable with death. It was settled 
(3 Wheaton, 610) that the statute did punish robbery with death 
if committed on the high seas, even though robbery on land 
might not incur that extreme penalty. I refer to the United 
States V. Palmer, 3 Wheaton, 610 ; the United States v. Jones, 
3 Washington's Circuit Court Reports, 209 ; United States v. 
Howard, Id., 340 ; 2 Whar. Crim. Law, fifth ed., p. 543. 

I have been thus particular in referring to the laws under 
which this indictment is framed, in order that you may per- 
ceive precisely the inquiry which we now have to make. It 
is, whether the statutory law of the United States has or has 
not been violated ? You have all, undoubtedly, heard more or 
less of the crime of piracy as generally and popularly under- 
stood. A pirate is deemed by the law of nations, and has 
always been regarded as the enemy of the human race, — as a 
man who depredates generally and indiscriminately on the 
commerce of all nations. Whether or not the crime alleged 
here is piracy under the law of nations, is not material to the 
issue. It might well be a question whether, in regard to 
depredations committed on the high seas, by persons in a 
foreign vessel, under the acknowledged authority of a foreign 
country, Congress could effectively declare that to be piracy 
which is not piracy under the law of nations ; but it is not ma- 
terial in this case. Congress is unquestionably empowered to 
pass laws for the protection of our national commerce and for 
the punishment of those who prey upon it. Congress has done 
so in the statutes to which I have referred. If the words 
"" pirate and felon " were stricken out from the act of 1790, 
and if the statutes simply read that any person committing 
robbery on the high seas should suffer death, the law would be 
complete, and could be administered without reference to 
what constitutes piracy by the law of nations. 

Having thus referred to the statutory law under which this 
indictment was found, I will state as succinctly as possible, with 



OF THE SCHOONER SAVANKAH. If 

due regard to fullness, i'airness, and completeness, the facts in 
this case. In the middle or latter part of May, 1861, a number 
of persons in the city of Charleston, South Carolina, conceived 
the purpose of purchasing or employing a vessel to cruise on 
the Atlantic with the object of depredating on the commerce 
of the United States. They proceeded to the fulfilhnent of that 
design by procuring parsons willing to act as captain, officers,, 
and crew of such piratical vessel. This there was at first con-- 
siderable difficulty in effecting, and it was not until many men- 
were thrown out of employment in Charleston, by the acts of 
South Carolina and of what is called the Confederate Govern- 
ment, and by the action of the United States Government in. 
blockading the port of Charleston and other Southern ports,^. 
that a crew could be found to man this vessel. There were no > 
shipping articles or agreeoient as to wages; but it was under- 
stood that all were to share in the plunder or proceeds arising 
from the capture of American vessels on the liigh seas. We 
shall show to you that the prisoners at the bar were finally in- 
duced to embark on this enterprise ; that Captain Baker was- 
one of the first to engage in it ; that he used exertions to obtain 
a crew, and succeeded, after considerable difficulty. On Satur- 
day, the first of June, 1861, the crew were embarked on a 
small pilot boat and proceeded down to opposite Fort Sumter,, 
where they were transferred, in small boats, to the schooner- 
Savannah. We shall show, by the declarations of the parties 
who stand charged here to-day, and also by the facts and cir- 
cumstances of the equipment of the vessel, the intent and pur- 
pose of this voyage. The Savannah, a schooner of fifty-three 
or fifty-four tons, was armed with cannon and small arms. Pis- 
tols and cutlasses were provided for her men. On Sunday 
afternoon, the 2d of June, she sailed from opposite Fort Sumter, 
her crew numbering about twenty men, all of whom are here 
with the exception of six, who were detached- to form a prize 
crew of the brig Joseph. On the morning of Monday, the 3d 
of June, a sail was descried ; it was remarked among the crew 
that the vessel, from her appearance, was undoubtedly a Yan- 
kee vessel, as they termed it — a vessel owned in one of the 
Northern States of the Union. She proved to be the brig 
Joseph, laden with sugar, and bound from Cardenas, in Cuba, 
to Philadelphia. The Savannah, displaying the American flag, 
gave chase. When within hailing distance. Captain Baker 
spoke the Joseph, ordered her captain on board his schooner,, 
and ran up the rebel standard. Captain Meyer, of the Joseph, 
perceiving that the Savannah was armed, and that her men 
were ready for assault, fearing for his safety and that of his 
crew, obeyed the summons. A prize crew was placed on board 
the Joseph — the captain of the Savannah declaring that he 



18 TRIAL OF THE OFFICERS AND CREW 

•" was sailing under the flag of the Confederate Government." 
The Savannah proceeded on her cruise. In a few liours after- 
ward, she descried the United States brig-of-war Perry. Sup- 
posing her to be a merchant vessel, she started in pursuit, fired 
a gun, and finally fired several guns. On discovering, how- 
ever, that the brig was a United States vessel-of-war, she at- 
tempted resistance, Captain Baker saying to his men, " Now, 
boys, prepare for action !" When within speaking distance, the 
commander of tlie Perry asked Captain Baker whether he 
surrendered, and he replied that he did. The prisoners were 
transferred from the Savannah to the Perry ; thence to the 
United States steam ship-of-war, Minnesota. The Savannah 
was then taken in charge by a prize crew from on board the 
Ferry and brought to New York. The Minnesota, with the 
prisoners on board, proceeded — on her way to New York — to 
Hampton Koads, where, after two days, she transferred the 
prisoners to the Harriet Lane, which delivered them at New 
York. Here they were given in charge to the United States 
Marshal. On my ofiicial application, a warrant wns issued by 
a United States Commissioner, and under it the Marshal, as 
directed, took formal possession of and held the prisoners. 
They were committed ior trial and were, within a few weeks 
afterwards, indicted by the United States Grand Jury. Al- 
.though the guilt and mischief of both piracy and treason may 
be embraced in the crime and its consequences, the charge is 
not one of treason, nor necessarily of piracy, as commonly 
understood, but the simple one of violating the statutes to which 
I have referred. 

The learned District Attorney here stated the evidence 
which he was prepared to submit, with the decisions upon 
which he would rest the case, and he proceeded to cite and 
comment upon the following, among other authorities : — U. S. 
V. Furlong, 5 Wheaton, 184 ; IJ. S. v. Klintock, 5 Id., 144 ; Nueva 
Anna and Liebre, 6 Id., 193; U. S. v. Holmes, 5 Id., 412; 
U. S. V. Palmer, 3 Id., 610 ; U. S. v. Tnlly, 1 Gallison, first ed., 
247 ; U. S. V. Jones, 3 Wash. Circuit Court Kep., 20 :» ; U. S. 
V. Howard, 3 Id., 340 ; U. S. v. Gibert, 2 Sumner, 19 ; U. S. 
V. Smith, 5 Wheaton, 153 ; 3 Chitty's Criminal Law, 1128 ; 1 
Kent's Com., 25, note c, and cases cited ; 1 Id., 99, 100, and 
cases cited ; 1 Id., 184, 185, 186, 187, 188, 191, and cases cited. 
Decisions as to jurisdiction : U. S. v. Hicks, MS. Judge Nel- 
son ; Irvine v. Lowry, 14 Peters, 293, 299 : Sheppard v. Graves, 
14 Howard, 605 ; D' Wolf v. Eabaud, 1 Peters, 476, 498. Mr. 
Smith then continued as follows : 

The atrocity of the authors and leaders of this rebellion 
against a government whose authorit}' has never been felt, with 
the weight of a feather, upon the humblest citizen, except for 
crime, has been portrayed so much more eloquently than I could 



OF THE SCHOONER SAVANNAH. 19 

present it, that I should not indulge in extended remarks on that 
subject, even if relevant to the case. Ignominy and death will 
be their just portion. The crime of those who have acted as the 
agents and servants of these leaders is also a grave one — a very 
grave one — mitigated, no doubt, by ignorance, softened by a 
credulous belief of misrepresentations, and modified by the very 
air and atmosphere of the place from which these prisoners em- 
barked. It is, undoubtedly, a case where the symj^athies of the 
j ury and of counsel — whether for the prosecution or the defence 
— may be well excited in reference to many, if not all, of the pris- 
oners at the bar, misguided and misdirected as they have been. 
But it will be your duty, gentlemen, while allowing these con- 
siderations to induce caution in rendering your verdict, to dis- 
regard them so far as to give an honest and truthful return on 
the evidence, and on the law as it will be stated to you by the 
Court. This is all the prosecution asks. As to the policy of 
ultimately allowing the law to take its course in this case, it is 
not necessary for us to express any opinion whatever. That is 
a, question which the President of the United States must de- 
termine if this trial should result in a conviction. It is for him, 
not for us. You must leave it wholly to those who are charged 
with high duties, after you shall have performed yours. 

The case is of magnitude ; but the issue for you to deter- 
mine is simple. Leaving out of view the alleged authority 
under which tlie prisoners claim to have acted, you will in- 
quire, in the first instance, whether the seizure of the Joseph 
and her lading was robbery. You will be unable to discover 
that any element of the crime was wanting. If no actual force 
was employed in compelling the surrender, it is enough that 
the captain and crew were put in bodily fear. So the traveler 
delivers his purse in obedience to a request, and the crime is 
complete, although violence proves unnecessary. That the 
humble owners of the brig were despoiled of their property — 
how hardly earned we know not — will not be disputed, i^or 
is it material that the proceeds were to be shared between the 
prisoners and absent confederates. As to the question of in- 
tent, it cannot be denied that the prisoners designed to do, and 
to profit by, what they did. They are without excuse, unless 
possessed of a valid commission. This brings us to the plea of 
authority. 

A paper, purporting to be a letter of marque, signed by 
Jefferson Davis, was found on the Savannah. Such a commis- 
sion is of no effect, in our courts of law, unless emanating from 
some government recognized by the Government of the tf nited 
States. The political authority of the nation, at Washington, 
has never recognized the so-called Confederate States as one of 
the family of nations. On the contrary, it resists their preten- 
sions, and proclaims them in rebellion. In this position of affairs, 



20 TRIAX, OF THE OFFICERS AND CREW 

a court of justice will not, nor can you as its officers, regard the 
letter as any answer to the case which the prosecution will es- 
tablish. Such is the law. It is so determined in decisions of 
the Supreme Court of the United States, which I have just 
cited. 

I will now proceed with the examination of the witnesses. 

Albert G. Ferris called and sworn. Examined by Dis- 
trict Attorney Smith : 

Q. Where were you born? 

A. In Barnstable, Massachusetts. 

Q. How old are you ? 

A. Fifty on the lOth of September last. 

Q. Have you a family? A. Yes, sir. 

Q. Does your family reside at Cliarleston? 

A. Yes, sir, at Charleston, South Carolina. 

Q. How long have you resided at Charleston ? 

A. Since 1837. 

Q. What has been 3'our business there? 

A. Sea-fariiig man. 

Q. In what capacity have you acted as a sea-faring man ? 

A. As master and mate. 

Q, In what crafts? 

A. In various crafts, small and large, and steamers. 

Q. Sailing out of the port of Charleston ? 

A. Yes, and from ports of New York, and Virginia, and 
other places. 

(^. In what capacity were you acting just prior to the time 
you embarked on board the Savannah ? 

A. I was acting as master of a vessel sailing from Charles- 
ton on the Southern rivers, in the rice and cotton trade. 

Q. What was the name of the vessel? 

A. The James H. Ladson, a schooner of about seventy-five 
tons. 

Q. Was the business in which you were engaged stopped ? 

A. Yes, sir. 

Q. At what time? A. In December, 1860. 

Q. What was your employment after that? 

A. I had no employment after that. The blockade pre- 
vented vessels from going out, although some did get out after 
the blockade was established. 

Q. State the facts and circumstances which preceded your 
connection with the Savannah ? 

A. I joined the Savannah as a privateer, through the influ- 
ence of acquaintances of mine, with whom I had sailed, and 
from the necessity of having something to do, and under the 
idea of legal rights from the Confederate Government. 



OF THE SCHOONER SAVANNAH. 21 

Q. What did you first do in reference to shipping on the 
;Savannah ? 

A. I was on tlie bay with an acquaintance of mine, named 
James Evans, who is now, I believe, at Charleston, and who 
spoke to me about it. 

Q. Was Evans one of the crew of the Savannah ? 

A. Yes, he was one of the prize crew that went off with the 
Joseph. He solicited me to join him, and said that he knew Cap- 
tain Baker, and that he and others were going iti the Savannah. 

Q. Where did you see him ? 

A. I saw him on the bay at Charleston. 

Q. Did you go anywhere with him in reference to enlisting? 

A. Yes, we went to the house of Bancroft & Son, and I was 
there introduced to Captain Baker. 

Q. Did you recognize Captain Baker on the cruise ? 

A. Yes, I recognized him then and since. 

Q. State the conversation ? 

A. Mr. Evans recommended me to Captain Baker as a 
man who was acquainted with the coast, and who was likely to 
be just the man to answer his purpose. I partly made arrange- 
ments with Captain Baker to — that is, he was to send for me 
when he wanted me. He further proposed, as nothing was 
doing, that he would give me a job to go to work on board the 
Savannah and fit her out ; but I had some little business to at- 
tend to at the time and declined. 

Q. State the conversation at Bancroft & Son's when you 
and Evans and Captain Baker were there ? 

A. These were the items, as near as my memory serves me : 
that we were going on a cruise of privateering. I considered 
it was no secret. It was well known, and posted through the 
city. Previous to that I had met some of the party, who 
talked about going, and who asked me whether I had an idea 
of going, and I said I had talked about it. They said that Cap- 
tain Baker was the officer. I then declined to go, and did not 
mean to go in her nntil Saturday morning. 

Q. Did you have a further interview with Captain Baker, 
■or any others of these men ? 

A. 1 had no other interview with Captain Baker at that 
time. I had no acquaintance with Captain Baker, or any on 
board, except these men who came from shore with me. 

Q. Did you see any one else in reference to shipping on 
this vessel, except those you mentioned ? 

A. I believe there was a man by the name of Mills who 
talked of it. He did not proceed in the vessel. I believe he 
-fitted her out, but did not go in her. 

Q. Did you talk to any one else in regard to going ? 

A. No ; he only told me he was going to get a crew. 

Q. What articles did you see drawn up ? 



22 TRIAL OF THE OFFICERS AND CREW 

A. There were no articles whatever drawn np, and I do 
not know what arrangements were made. I understood since 
I have been here that arrangements were made, but they were 
not proposed to me. It was a mere short cruise to be under- 
taken. 

Q. Was the purpose or object of the cruise stated ? 

A. It was the object of going out on a cruise of privateer- 
ing. 

Q. "When did you embark on the vessel ? 

A. On Saturday night, the 1st of June, 1861. 

Q. Do you recollect who embarked with you that night? 

A. Some five or six of us. 

Q. Give their names ? 

A, Alexander Coid was one (witness identified him in 
Court), Charles Clarke was another, and Livingston or Knick- 
erbocker was another. I do not recollect any more names. 
There was a soldier, whose name I do not know, who went on 
the prize vessel. 

Q. How did you get from the dock at Charleston ? 

A. In a small boat to a pilot-boat, and in the pilot-boat to 
the Savannah in the stream. She was lying about three miles 
from the city, and about three-quarters of a mile from Fort 
Sumter. 

Q. How did you get from the pilot-boat to the Savannah ? 

A. In a small boat. 

Q. And from the dock at Charleston to the pilot-boat? 

A, In a small boat. 

Q. Did any one have an}^ direction in the embarkation ? 

A. No one, particular. There were some agents employed 
to carry us down. There was no authority used whatever. 

Q. When did you sail from Charleston in the Savannah ? 

A. On Sunday afternoon from the outer roads. 

Q. When did you weigh anchor and sail from Fort Sum- 
ter ? A. On Sunday morning, about 9 or 10 o'clock. 

Q. Do you know the men you saw on board ? 

A. Yes, sir. 

Q. Do you know the names of all the prisoners ? 

A. I believe I do, pretty nearly. I do not know that I 
could pronounce the name of the steward or cook, but I know 
that they were with us. 

(The prisoner, Passalaigue, was asked to stand up, and the 
witness identified him.) 

Q. What was his position on board? 

A. I do not know what his position was. I never learned 
that. He was on board as if superintending the provisions, or 
something of that kind. 

(The prisoner, John Harleston, was asked to stand up, and 
witness identified him.) 



OF THE SCHOONER SAVANNAH. 23 

Q. What position bad he on board ? 

A. I do not know what he did on board, anything more 
than that he arranged tlie big gun, and asked assistance tO'^ 
lend him a hand in managing the gun. 

Q. Was he an officer, or seaman ? 

A. I believe he is no seaman. 

Q. In what capacity did he act on board ? 

A. Nothing further than that, so far as I learned. 

Q. Did you hear him give any directions? 

A. 'No, sir ; 1 was at the helm most of the time, when any- 
thing was done at the gun. 

(The prisoner, Henry Howard, was asked to stand up, and 
witness identiiied him.) 

Q. In what capacity was he ? 

A. That was more than I learned. They were all on board:, 
when I Joined her. 

Q. Was he a seaman or officer ? 

A. He stood aft with the rest of us, and assisted in work- 
ing the vessel. 

(The prisoner, Del Cano, was directed to stand up, and 
witness identitied him as being the steward. He also identi- 
fied Henry Oman as attending to the cooking department. 
The prisoner was directed to stand up, and was identified by 
the witness.) 

Q. In what capacity was he ? 

A. The same as the rest — a seaman. 

(Witness also identified William Charles Clarke, Richard 
Palmer, and John Murphy, as seamen, and Alexander C. Coid, 
as seaman. Martin Galvin, the prisoner, was directed to stand 
up, and was identified by the witness.) 

Q. Was he a seaman ? 

A. 1 do not think he was either seaman or officer. 

Q. What did he do on board ? 

A. Little of anything. There was very little done any 
way. 

Q. Did he take part in working the vessel ? 

A. Yery little, if anything at all. I believe he took part 
in weighing anchor. 

Q. You identify Captain Baker as captain of the vessel ? 

A. Yes, I could not well avoid that. 

Q. How many more were there besides those you have 
identified ? 

A. Some six. I think about eighteen all told, not includ- 
ing Knickerbocker and myself. 

Q. How many went ofi" on the Joseph ? 

A. There Avere six of them. 

Q. Did any of those that are now here go ofi' on the Jo- 
seph? 



"24 TRIAL OF THE OFFICERS AND CREW 

A. No, I believe not. 1 know all here. We have been 
long enough in shackles together to know one another. 

Q. Do you remember the names cf those that went on the 
■ Joseph ? 

A. I know two of them — one named Hayes, and Evans, 
the Charleston pi'ot. 

Q. The same Evans who went on board with you ? 

A. Yes, sir; he was a Charleston pilot. 

Q. What did Hayes and Evans do on board ? 

A. They did the same as the rest — all that was to be done. 

Q. Were either of them officers ? 

A. Mr. Evans was the Charleston pilot. He gave the 
orders when to raise anchor and go out. He acted as mate 
and pilot when he was there. I presume he had as much au- 
thority, and a little more, than any one else ; he was pilot. 

Q. What did Hayes do ? 

A. He was an old, experienced man — did the same as the 
•rest — lived aft with the rest. He was a seaman. 

Q. The other four, whose names you do not recollect, did 
they act as seamen ? A. Exactly, sir. 

Q. Any of them as officers ? 

A. No, eir ; if they were, they were not inaugurated in 
vanv position while I was there. 
" Q. What did you do ? 

A. I did as I was told by the captain's orders — steered and 
made sail. 

Q. What time did you get off from the bar in Charleston ? 

A. We got off Sunday afternoon and made sail east, out- 
side of the bar, and proceeded to sea. 

Q. Do you remember any conversation on board when 
any of the prisoners were present ? 

A. Yes ; we talked as a party of men would talk on an ex- 
pedition of that kind. 

Q. What was said about the expedition ? 

A. That we were going out privateering. The object was 
to follow some vessels, and that was the talk among ourselves. 

Q. Did anything happen that night, particularly ? 

A. No, sir ; nothing happened, except losing a little main- 
top mast. 

Q. What course did you take ? 

A. We steered off to the eastward. 

Q. Did you steer to any port ? 

A. No, sir ; we were not bound to any port, exactly. 

Q. What directions were given in respect to steering the 
vessel ? 

A. To steer off to the eastward, or east by south, just as 
-the wind was : that was near the couise that was ordered. 



OF THE SCHOONER SAVANNAH. 25 

Q. "When did you fall in with the Joseph ? 

A. On Monday morning, the 3d. 

Q. Do you remember who discovered the Joseph ? 

A. I think it was Evans, at the masthead. 

Q. What did he cry out ? 

A. He sung out there was a sail on the starboard bow, 
running down, which proved afterwards to be the brig Joseph. 

Q. State all that was said by or in the presence of the 
prisoners when and after the vefsel was descried ? 

A. We continued on that course for two or three hours. 
We saw her early in the morning, and did not get up to her 
until 9 or 10 o'clock. 

Q. How early did you see her ? 

A. About 6 o'clock. There were other vessels in sight. 
We stood otf on the same course, when we saw this brig, — I 
think steering northeast by east. We made an angle to cut 
her oif, and proceeded on that course until we fell in with her. 

Q. What was said while running her down ? 

A. When near enough to be seen visibly to the eye, our 
men, Mr. Hayes, and the others, said she was a Yankee vessel ; 
she was from the West Indies, laden with sugar and molasses. 
The general language was very little among the men ; in fact, 
sailor-like, being on a flare-up before we left port, not much 
was said. 

Q. State v/hat was said ? 

A. Well, first the proposition was made that it was a Yan- 
kee prize ; to run her down and take her. That was repeated 
several times. Nothing further, so far as I know of. 

Q. During the conversation were all hands on deck ? 

A. Yes, sir, all hands on deck. In fact, they had been on 
deck. It was very warm ; our place was very small for men 
below. In fact, we slept on deck. No one slept below, while 
there, much. It was a very short time we were on board of her — 
from Saturday to Monday night — when we were taken oif. 

Q. What was said was said loud, so as to be heard ? ^ 

A. Yes ; it was heard all about deck. That was the principal 
of our concern in going out ; it was our object and our conver- 
sation. 

Q. When you ran along down towards the Joseph, state 
what was said. 

A. That was about the whole of what occurred — the men 
talking among themselves. 

Q. When you got to the Joseph what occurred ? 

A. She was hailed by Captain Baker, and requested to send 
a boat on board. 

Q. Who answered the hail ? 

A. I believe Captain Meyer, of the brig. 



26 TRIAL OF THE OFFICERS AND CKEW 

Q. Would you recognize Captain Meyer now ? 

A. Yes, sir. 

Q. State what Captain Baker said ? 

A. Captain Baker, as near as I can bear in mind, hailed 
him, and told him to come on board and fetch his papers. 

Q. Did Captain Meyer come on board ? 

A. He lowered his boat, and came on board with his own 
boat and crew. Captain Baker said to him that he was under 
the Confederate flag, and he considered him a prisoner, and his 
vessel a prize to the Confederate Government. 

Q. Repeat that ? 

A. If I bear in mind. Captain Meyer asked what authority 
he had to hail his vessel, or to that effect. The reply of Cap- 
tain Baker, I think, was that he was under a letter of marque 
of the Confederate Government, and he would take him as a 
prisoner, and his vessel as a prize to the Southern Confederacy. 
I do not know the very words, but that was the purport of the 
statement, as near as 1 understood. 

Q. When Captain Baker hailed the Joseph, do you remem- 
ber the language in which he hailed her ? 

A. I think, " Brig, ahoy ! Where are you from ?" He 
answered him where from — I think, from Cardenas ; I think, 
bound to Philadelphia or New York. 

Q. Did he inquire about the cargo ? 

A. No, sir, I think not, until Captain Meyer came on board. 
We were but a short distance from the brig. The brig was 
hove to. 

Q. Do you remember anything further said by Captain 
Baker, or any of the prisoners ? 

A. He had some further conversation with Captain Meyer, 
on the deck, with respect to the vessel, where from, the cargo, 
and the like of that. She had in sugars, as near as my memory 
serves me. 

Q. What flag had the Savannah, or how many ? 

A. She had the Confederate flag. 

Q. What other flags, if any ? 

A. She had the United States flag. 

Q. Any other? 

A. No, sir, I do not know that she had any other. 

Q. Did you notice what flag the Joseph had? 

A. I did not see her flag, or did not notice it. I saw her 
name, and where she hailed from. I knew where she be- 
longed. 

Q. What was on her stern ? 

A. I think "The Joseph, of Rockland." I knew where it 
was. I had been there several times. 



OF THE SCHOONER SAVANNAH. ^t 

Q. When the safl was first descried was there any flag 
flying on the Savannah ? A. No, sir. 

Q. When you ran down towards the Joseph was there any 
flying ? 

A. Yes, sir, we had the Confederate flag flying, and, I be- 
lieve, the American flag. 

Q. Which was it ? 

A. I believe both flying — first one, and then the other. 

Q. Which first ? 

A. I think the Stars and Stripes first. I am pretty certain 
that Mr. Evans then hauled that down. 

Q. When running down toward the Joseph you had the 
American fiag flying ? 

A. Yes, sir; 1 think so; and Mr. Evans hauled down that, 
and put up the Confederate flag, when we got close to her. 

Q. She ran with the American flag until close to her, and 
then ran up the Confederate flag ? 

A. YeSj when some mile or so of her — in that neighborhood. 

Q. Do you remember who gave the order to the prize crew 
to leave the Savannah and go on board the Joseph ? 

A. Issued the orders ? Well, Captain Baker, I believe, told 
the pilot, Mr. Evans, to select his men, and go with the boat. 

Q. And they went on board ? 

A. Yes, they went on board. 

Q. Do you remember anything said among the men, after 
the prize crew went off", in respect to the Joseph, or her cargOy 
or her capture ? 

A. Captain Meyer was there, and stated what he had in her, 
and where he was from, and so forth. We were merely talking 
about that from one to the other. 

Q. Do you remember any directions given to the prize crew, 
as to the Joseph — where to go to ? 

A. I do not recollect Captain Baker directing where to get 
her in, or where to proceed with her. Evans was better 
authority, I presume, than Captain Baker, where to get her in. 

Q. Any directions as to where the vessel was to be taken? 

A. No, sir; either to Charleston or Georgetown — the nearest 
place where they could get in, and evade the blockade. That 
was the reason of having the pilot there. 

Q. Did Captain Meyer remain on board the Savannah? 

A. Yes, sir, until we were captured, and then he was trans- 
ferred to the brig Perry, with the rest of us. 

Q. What direction did the Joseph take after she parted from 
jou ? 

A. Stood in northward and westward. Made her course 
about northwest, or in that neighborhood. 



28 TKIAL OF THE OFFICERS AND CKEW 

Q. In what direction from Charleston and how far from 
Cliarleston was the Joseph ? 

A. I think Charleston Bar was west of us about 50 or 55 
miles. 

Q. Out in the open ocean ? 

A. Yes, sir. I calculated that Georgetown light bore up 
about 35 miles in the west ; but whether that is correct or not I 
cannot say. 

Q. Where was the nearest land, as nearly as you can state? 

A. I think the nearest land was Ball's Island, somewhere 
in the neighborhood of north and west, 35 or 40 miles. 

Q' AVhat sail did you next fall in with? 

A. We fell in with a British bark called the Berkshire. 

Q. What did you do when you fell in with her ? 

A. We passed closely across her stern. She was steering 
to the northward and eastward — I suppose bound to some 
Northern port, 

Q. That was a British brig ? A. Yes, sir. 

Q. What was the next sail you fell in with ? 

A. The next sail we fell in with was the brig-of-war Perry. 

Q. At what time did you descry her ? 

A. I suppose about 3 o'clock in the afternoon of the same 
day. 

Q. Where were you when you fell in with her ? 

A. We were somewhere in the same parallel. We saw 
the brig Perry from the masthead, and stood towards her. 

Q. What was said when she was seen? 

A. We took her to be a merchant vessel. That was our idea, 
and we stood to the westward. 

Q. Did you make chase ? 

A. Yes, sir, we stood to the westward when we saw her ; 
and the brig Joseph, that we took, saw her. The Perry, I pre- 
sume, saw us before we saw her, and was steering for us at the 
time we were in company with the Joseph. 

Q. How far off was the Joseph at the time ? 

A. ISTot more than three or four miles. When we made her 
out to be the brig-of-war Perry, we then tacked ship and pro- 
ceeded to sea, to clear her. 

Q. How near was the brig Perry when you first discovered 
she was a man-of-war? 

A. I should think she was all of 10 or 11 miles off. 

Q. The brig Perry made chase for you ? A. Yes, sir. 

Mr. Larocque : If the Court please, from the opening of 
<;ounsel I suppose he is now proceeding to that part of the case 
that he laid before the jury in his opening, that consists in an 
exchange of shots between the brig Perry and the Savannah. 



OF THE SCHOONER SAVANNAH. 2& 

We object to that. There is no charge in the indictment of re- 
sisting a United States cruiser, or of any assault whatever. 

Mr. Smith: What the vessel did on the same day, before 
and after the main charge, goes to show the purpose of the 
voyage — the general object of the Savannah and her crew. It 
may be relevant in that respect. 

Mr. Larocque : We are not going to dispute the facts testi- 
fied to by this witness. There will be no dispute on this trial that 
this was a privateer — that her object was privateering under 
the flag of the Confederate Government, and by authority of 
that Government, and, under these circumstances, the gentle- 
man has no need to trouble himself to characterize these acts 
by showing anything that occurred between the Savannah and 
the Perry. Your honor perceives at once that this indictment 
might have been framed in a different way, under the 8th sec- 
tion of the Act ot 1790, with a view of proving acts of treason , if you 
please, which are made piracy, as a capital offence, by that act. 
The counsel has elected his charge, and he has strictly confined 
the charge in the indictment to the allegation of what occurred 
between the Savannah and the Joseph. There is not one word 
in the indictment of any hostilities between the Perry and the 
Savannah, and therefore it must be utterly irrelevant and im- 
material under this indictment. Evidence on that subject 
would go to introduce a new and substantial charge that we 
have not been warned to appear here and defend against, and 
have not come jDrepared to defend against, for that reason. So 
far as characterizing the acts we are charged with in the indict- 
ment, there can be no difficulty whatever. 

The Court : I take it there is no necessity for this inquiry 
after the admission made. 

Mr.Evarts: We propose to show the arrest and bringing 
of the vessel in, with her crew. 

The Court : Of course. 

Mr. JEvarts : That cannot very well be done without show- 
ing the way in which it was done. 

The Court : But it is not worth w^hile to take up much time 
with it. 

Mr. Brady : The witness has stated that this vessel was cap- 
tured, and he has stated the place of her capture ; and of course it 
is not only proper, hut, in our view, absolutely necessary, that the 
prosecution should show that, being captured, she was taken into 
some place out of which arose jurisdiction to take cognizance of 
the alleged crime. But the cannonading is no part of that. 

Q. By Mr. Smith : State the facts in regard to the capture 
of the Savannah by the Perry. 

A. Well, the brig Perry ran down after dark and overtook 
us; came within hail. 



30 TRIAL OF THE OFFICERS AND CREW 

Q. At what time? 

A. Near 8 o'clock at night. Without any firing at all, 
she hailed the captain to heave to, and he said yes ; she told 
him to send his boat on board. He said that he had no boat 
suflScient to go with. They then resolved to send a boat for 
us, and did so, and took us off. That was the result. 

Q. The Perry sent her boat to the Savannah ? 

A. Yes, sir ; we had no boat sufficient to take our crew 
aboard of her. We had a small boat, considerably warped, 
and it would not float. 

Q. Where at sea was the capture made of the Savannah 
by tlie Perry ? A. It was in the Atlantic Ocean. 

Q. About how far from Charleston ? 

A. Well, about 50 miles from Charleston light-house, in 
about 45 fathoms of water. 

Q. How far from land ? 

A. I suppose the nearest land was Georgetown light, about 
35 or 40 miles; I should judge that from my experience and 
the course we were running. 

Q. Were you all transferred to the Perry? A. Yes, sir. 

Q. When was that ? 

A. Monday night ; it was later than 8 o'clock. 

Q. Transferred by boats ? 

A. Yes, sir ; the Perry's boats. She sent her boat, with 
arms and men, and took us on board. There we were all ar- 
rested and put in irons that night, except the captain and Mr. 
Harleston, I believe. I do not know whether they were, or 
not. 

Q. Was Mr. Knickerbocker put on board the Perry, with 
the rest? A. Yes, sir, and on board the Minnesota, with us. 

Q. Who were put in charge of the Savannah ? Were there 
any men of the Perry ? 

A. Yes, sir ; I believe they sent a naval officer on board to 
take charge of her, and a crew ; and I think they took Mr. 
Knickerbocker and Capt. Meyer, too, on board the Savannah? 

Q. Did you hear the direction as to the port the Savannah 
should sail to after the prize crew were put on board ? 

A. To New York I understood it was ordered. I was told 
that she was ordered to New York. 

(Objected to as incompetent.) 

Q. In respect to the Perry, what course did she take after 
you were taken on board? 

A. As informed by the captain, next day, she was bound to 
Florida, to Fernandina, to blockade. 

Q. When did she fall in with the Minnesota? 

A. About the third day after our capture, I think ; lying 
8 or 10 miles oft' Charleston. 



OF THE SCHOONER SAVANNAH. 31 

^. In the open ocean ? A. Yes, sir. 

Q. You were all transferred to the Minnesota ? 

A. Yes, sir. 

Q. What did the Minnesota do? 

A. We were confined on board the Minnesota. 

Q. When was it you went on board the Minnesota ? 

A. I think on Wednesday or Thursday ; I forget which. 

Q. You were captured on Monday night ? 

A. Yes, sir, the 3d of June, and 1 think it was on Wednes- 
day or Thursday (I do not know which) we went on board the 
Minnesota. 

Q. How long did you lie off Charleston ? A. Several days. 

Q. At anchor ? 

A. Tlie ship was under way sometimes, steering off and on 
the coast. 

^. How far from Charleston ? 

A. I think in 8 or 9 fathoms of water, 8 or 10 miles from 
the land. 

Q. Where did the Minnesota proceed from there ? 

A. To Hampton Roads. 

Q. Were all the persons you have identified here on board 
the Minnesota ? 

A. Yes, sir. 

Q. State the facts as to transfer from ship to ship ? 

A. We were transferred from the Savannah to the Perry; 
from the Perry to the Minnesota ; from the Minnesota to the 
Harriet Lane. 

Q. All of you ? 

A. Yes, sir ; all. 

Q. State, as near as you can, where, at Hampton Roads, 
the Minnesota came? 

A. She came a little to the westward of the Rip Raps ; I 
suppose Sewall's Point was bearing a little to the west of us, 
f or f a mile to the west of us ; I should judge west by south. 
I am well acquainted there. We call it 2i miles from Old 
Point Comfort. 

Q. What was the nearest port of entry to where you were 
anchored? A. Norfolk, Ya. 

Q. How far from Fortress Monroe ? 

A. A mile, or 1^ or 1^ — not a great distance. 

Q. How long did you lie there before you were transferred 
to the Harriet Lane ? 

A. Several days. I did not keep any account. Some two 
or three days. 

Q. And you were brought to this port in the Harriet Lane ? 

A. Yes, sir. 

Q. And all the prisoners you identified to-day were brought 
here? 



32 TRIAL OF THE OFFICERS AND CREW 

A. Yes, sir, to the Navy Yard, Brooklyn ; there transferred 
to a ferr3''-boat and brought to the Marshal's office here. 

Mr. Jivaris : If the Court please, we deem it a regular and 
necessary part of onr proof to show the manner of the seizure 
of this vessel by the U. S. ship Perry ; to show that it was a 
forcible seizure, by main force, and against armed forcible re- 
sistance of this vessel. Besides being almost a necessary part 
of the circumstances of the seizure, it is material as character- 
izing the purpose of this cruise, and the depth and force of the 
sentiment which led to it, and the concurrence and cohesion of 
the whole ship's crew in it. 

The Court: "What necessity for that after what has been 
conceded on the other side ? 

Mr. Evarts : They concede that she was seized ; but do 
they concede that, as against all those accused, the crime of 
piracy is proved — the concurrence of the whole — and that the 
only question is, whether the protection claimed from what is 
called the privateering character of the vessel shields them ? 

The Court: I understand the admission to be broad. 

Mr. Evarts : If as broad as that, that there is no distinc- 
tion taken between the concurrence of these men, it is suffi- 
cient. 

Mr. Brady : We have said nothing about that ? 

The Court : So far as the capture is concerned, that does 
not enter into any part of the crime, and has no materiality to 
the elements of this case at all. The force that may enter into 
the crime is in the capture by the privateer of the Joseph. I 
do not want to confound this case by getting oif on collateral 
issues ; and so far as concerns the animus, or intent, 1 under- 
stand it to be admitted. 

Mr. Evarts : My learned friends say that on this point they 
have not said anything as to the jointness or complicity of the 
parties in this crime. Now I think your honor would under- 
stand that a concurrence in resistance, by force, of an armed 
vessel of the United States, bearing the flag of the United 
States, and undertaking to exercise authority over it, would 
show their design. 

The Court : Have you any question as to the facts ? 

Mr. Evarts : The Government have all the facts. Stripped 
of all the circumstances that attended the actual transaction, it 
would appear as if, when the brig Perry came along, these 
people at once surrendered, gave up, and submitted quietly and 
peacefully. As against that, we submit the Government should 
protect itself by proving the actual transaction. 

Mr. Brady : One thing is certain, that if these men com- 
mitted any oflt'ence whatever, it was committed before they saw 
the Perry; it was an act consummated and perfect, whatever 



OF THE SCHOONER SAVANNAH. 33 

may have been its legal character, and whatever may have 
been the consequences which the law would attach to it. The 
proof of the capture of the Savannah by the Perry is in no way 
relevant, except in proving jurisdiction, for which purpose alone 
is it of any importance that it should be mentioned here. And 
whether the capture was effected after a chase, or without one, 
against resistance, or by the consent of the persons to that from 
which they could not escape, is of no possible consequence in 
:any aspect of the case. Whether there was firing or armed 
resistance can make no difl'erence. It cannot bear on the ques- 
tion whether all the defendants are responsible for the acts of 
each other, like conspirators. It may be, as the counsel for the 
prosecution holds, that when you show they did set out on a 
common venture each became the agent of the other. That 
may be, and they must take the responsibility of trying the 
case on such a theory of the law as they think proper. We 
would not feel any hesitation in saying they all acted with a 
common design, only that there are some of the prisoners that 
we have had no communication with, and it may be that some 
of them went on board without knowing what the true charac- 
ter of the enterprise was. It is sufficient now to object that the 
question, whether there was resistance or not, after the Perry 
came up, is of no consequence in deciding the question of 
whether the men are responsible. 

Mr. Evarts : My learned friend is certainly right in saying 
that the crime was completed when the Joseph was seized ; but 
it does not follow that the proof of what the crime was, and 
what the nature of the act was, is completed by the termination 
of that particular transaction. You might as well say that the 
fact of a robbery or theft has been completed by a pickpocket 
or highwayman when his victim has been despoiled of his 
property ; and that proof of the crime prohibits the Government 
from showing the conduct of the alleged culprit after the trans- 
action — such as evading the officer, running aw^ay from or re- 
sisting the officer. 

The Cov/rt: You do not take into account the adm'ssion of 
the counsel. I believe the subsequent conduct of the privateers, 
if the intent with which they seized and captured the Joseph 
was in question, would be admissible ; but when this is admit- 
ted broadly by the counsel for the defendants, I do not see why 
it is necessary to go into proof with a view to make out that 
fact, except to occupy the time of the Court. 

Mr. Evarts: I am sure your honor will not impute to us any 
such motive. The point of difficulty is : my learned friends do 
not admit the completeness of the crime by all the prisoners, 
subject only to the answer whether the privateering character 
of the enterprise protects them. The moment that is admitted, 
I have no occasion to dwell upon the facts. 

3 



S4: TRIAL OF THE OFFICERS AND CKEW 

The Court: I understand the admission as covering all the 
prisoners, as to the intent. 

Mr. Brady : That she was fitted out as a privateer — the en- 
terprise, and capture of the Joseph. 

Mr. Smith : Is the admission that all were engaged in a 
common enterprise, and all participators in the fact ? 

The Court: So I understand the admission, without any 
qualification. 

Mr. Smith : Do we understand the counsel as assenting to 
the Court's interpretation as to the breadth of the admission ? 

Mr. Brady : There is no misunderstanding between the 
Court and the counsel; but the learned gentlemen seem not to 
be satisfied with the admission we made. The intent is, of 
course, an element in the crime of piracy. There must be an 
animus fur audi established, in making out the crime ; and that 
is, of course, a question about which we have a great deal to 
say, both as to the law and the fact, at a subsequent stage of 
the case. When the counsel proposed to prove the firing of 
cannon, and armed resistance, we said — what we say now — that 
we do not intend to dispute the facts proved by the witness on 
the stand : that the Savannah was, at the port of Charleston, 
openly and publicly, without any secresy (to use the witness's 
language, it was "posted"), fitted out as a privateer, in the 
service of the Confederate States, under their flag, and by their 
authority ; that it was so announced, and that these v(\q,w were 
shipped on board of her as a privateer. All that, there is no 
intention to dispute at all ; and, of course, that all the men who 
shipped for that purpose were equally responsible for the con- 
sequences, we admit. 

Mr. Evarts : Do you admit that all shipped for the purpose? 
If we can jirove their conduct, concurring in this armed resist- 
ance, then I show that they were not there under any deception 
about its being a peaceable mercantile transaction. I may be 
met by the suggestion that, so far as the transaction disclosed 
about the Joseph is concerned, there was not any such depth of 
purpose in this enterprise as would have opposed force and 
military power in case of overhauling the vessel. It would 
seem to me, with great respect to the learned Court, that when 
the facts of the transaction can be brought within very narrow 
compass, as regards time, it is safer that we should disclose the 
facts than that admissions should be accepted by the Court and 
counsel when there is so much room for difi'erence of opinion 
as to the breadth of the admission. We may run into some 
misunderstanding or difference of view as to how far the actual 
complicity of these men, or the strength of their purpose and 
concurrence in this piratical (as we call it) enterprise, was 
carried. 



or THE SCHOONEK SAVANNAH. 35 

Mr. Lord: If your honor will permit, it appears to me that 
this is exceedingly plain. The notoriety and equipment of the 
vessel — all the character of the equipment — the sailing to- 
gether — all that is covered by the admission of my friend, Mr. 
Brady. So far as to there being a joint enterprise up to the 
time of the capture of the Joseph, it seems to me there is 
nothing left. Now, what do they wish ? They wish to show, 
what is in reality another, additional, and greater crime, after 
this capture of the Joseph, for which we alone are indicted, as 
they say, for the purpose of showing that we assented to this, 
which we went out to do. 

Your honor knows that, if we have any fact to go to the 
jury, they are getting into this case a crime of a very different 
character and of a deeper dye, for which they have made no 
charge, and which does not bear upon that which, if a crime 
at all, was consummated in the capture of the Joseph — the 
only crime alleged in the indictment. I submit that they can- 
not, with a view of showing complicity in a crime completed, 
show that the next day the men committed another crime of a 
deeper character. I think it is not only irrelevant, but highly 
objectionable. 

The Court : We are of opinion that this testimony is super- 
fluous, and superseded by the admission of the counsel. I un- 
derstand the admission of the counsel to be, that the vessel 
was fitted out and manned by common understanding on the 
part of all the persons on board, as a privateer ; and that in 
pursuance of that design and intent, and the completion of it, 
the Joseph was captured. That is all the counsel can ask. 
Tliat shows the intent — all that can be proved by this subse- 
quent testimony ; and unless there is some legitimate purpose 
for introducing this testimony, which might, of itself, go to 
show another crime, we are bound to exclude it. 

Mr. Mxirts : We consider the decision of your honor rests 
upon that view of the admission, and we shall proceed upon 
that as being the admission. 

The Court: Ceitainly ; if anything should occur hereafter 
that makes it necessary, or makes it a serious point, the Court 
will look into it. 

Examination resumed hy District Attorney Smith. 

Q. You stated, I believe, that it was after 8 o'clock in the 
evening when the boat of the Perry came to the Savannah ? 

A. Yes, sir. 

Q. Who was in that boat? 

A. There was a gentleman from the Perry ; I do notfknow 
that I ever saw him before; an officer and boat's crew, — I sup- 
pose 15 or 20 men. 



36 TRIAL OF THE OFFICERS AND CREW 

Q. One of the United States officers ? 
A. Yes, sir ; some officer from the brig Perry boarded us, and 
demanded us to go on board the Perry. 

Q. Where were the crew of the Savannah at the time the 
"boat came from the Perry? A. All on deck, sir. 

Q. At the time the Savannah was running down the Joseph, 
■what time was it ? 

A. We got up to the Joseph somewhere late in the fore- 
noon, as near as my memory serves me. 

Q. I want to know whether all the officers and crew of the 
Savannah were on duty, or not, at the time }ou were running 
down? 

A. Yes, sir ; there were some walking the deck, and some 
lying down, right out of port ; the men, after taking a drink, 
did not feel much like moving about ; they were all on deck. 

Q. Was there any refusal to perform duty on the part of 
any one? A. No, sir ; all did just as they were told. 

Q. How was the Savannah armed, if armed at all ? 

A. I never saw all her arms, sir. 

Q. What was there on deck ? ^. A big gun on deck. 

Q. What sort of a gun ? 

A. They said an eighteen-pounder ; I am no judge ; I never 
saw one loaded before. 

Q. A pivot gun? 

A. No, sir, not much of a pivot. They had to take two or 
three handspikes to round it about. 

Q. It was mounted on a carriage, the same as other guns ? 

A. Yes, sir. 

Q. With wheels? 

A. I believe so ; I took no notice of the gun. 

Q. Reflect, and tell us how the gun was mounted ? 

A. It was mounted so that it could be altered in its posi- 
tion by the aid of handspikes ; it could be swung by the use 
of handspikes. 

Q. The gun could be swung on the carriage without mov- 
ing the carriage ? 

A. I do not know that part of it ; I know the men com- 
plained that moving the gun was Lard work. 

Q. What other arms had you on board ? 

A. I saw other arms on board, — pistols, I believe, and cut- 
lasses. 

Q. How many pistols did you see ? 

A. I saw several ; I do not know how many, 

Q. About how many cutlasses ? 

A. I cannot say how many ; I saw several, such as they 
"were — cutlasses or knives, such as they were. 

Q. Where were the cutlasses ? 



OF THE SCHOONER SAVANNAH. ST 

A. Those were in the lockers that I saw ; I never saw themi 
"until Monday noon, when we ran down the Joseph ; 1 sawr 
them then. 

Q. Where were they then ? 

A. I saw them in the lockers that lay in the cabin. 

Q. When the Perry's boat came to you where were they ? 

A. Some out on the table, and some in the lockers. 

Q. When you captured the Joseph where were they ? 

A. I think there were some out on the table, and about the 
cabin ; the pistols, too ; but there were none used. 

Q. Were any of the men armed ? 

A. No, sir ; I saw none of our men armed, except in theirr 
belt they might have a sheath knife. 

Q. Where were all hands when you captured the Joseph, 
in the forenoon of Monday ? 

A. All on deck, sir ; there might be one or two in the fore- 
castle, but most on deck, some lying down, and some asleep. 

Q. What size is the Savannah ? 

A. I think in the neighborhood of 50 to 60 tons. 

Q. What is the usual crew for sailing such a vessel, for mer- 
cantile purposes ? 

A. I have been out in such a boat with four men and a, 
boy, besides myself; that was all-sufficient. 

Q. Where did you run to ? 

A. I ran to Havana, and to Key West, with the mails, 
and returned again in a pilot boat of that size, with four men. 
and a boy, some years ago. 

Q. Was the Savannah in use as a pilot boat before that ex- 
pedition ? 

A. Yes; that is what she was used for. 

Q. Do you know where the Savannah was owned ? 

A. I believe she was owned in Charleston. 

Q. How long have you known her ? 

A. Two or three years, as a pilot boat. 

Q. Do you know her owners ? A. I know one of them.. 

Q. What was his name ? A. Mr. Lawson. 

Q. Is he a citizen of the United States ? 

A. Yes, I believe so. 

Cross-examined by Mr. Zarocque. 

Q, In speaking of your meeting with the Joseph, you spoke 
of a conversation that took place between Captain Baker and 
Captain Meyer, after Captain Meyer came on board the Savan- 
nah. Do you not recollect that before that, when Captain 
Meyer was still on the deck of the Joseph, Captain Baker having; 
called him to come on board the Savannah, and bring his papers,, 



38 TRIAL OF THE OFFICERS AND CREW 

he asked Captain Baker by what authority he called on him to 
do that? 

A. I think this conversation occurred on board the Sa- 
vannah. 

Q. The way you stated was this : that Captain Baker, on 
board the Savannah, stated to Captain Meyer that he must 
consider himself and crew prisoners, and his vessel a prize to 
the Confederate States ? A. Yes, sir, 

Q. That was on board the Savannah? A. It was. 

Q. But do you not recollect that before that, when Captain 
Baker called on the Captain of the Joseph to come on board 
the Savannah, and brintj his papers, Captain Meyer asked by 
wliat authority Captain Baker called on him to do that ? 

A. 1 do not bear that in mind. I cannot vouch for that. 
I do not exactly recollect those woi ds, I think the proposition 
was only made when he was on board the Savannah, but pro- 
bably it might have been made before. 

Q. Did Captain Meyer bring his papers with him? 

A. I do not know. I did not see them. 

Q. You spoke of having met another vessel after that, and 
before you fell in with the Perry — 1 mean the Berkshire — you 
spoke of her as a British vessel ? 

A. Yes. We did not speak her. 

Q. How did you ascertain the fact that she was a British 
vessel ? 

A. We could tell a British vessel by the cut of her sails. 

Q. Was the Berkshire, so far as you observed, an armed or 
an unarmed vessel ? 

A. I think she was an unarmed vessel. I considered she 
had been at some of the Southern ports, and had been or- 
dered off. 

Q. She was a merchant vessel? A. Yes. 

Q. Which you, from your seamanlike knowledge, thought 
to be a British vessel ? 

A. Yes ; and I think that the words, " Berkshire, of Liver- 
pool," were on her stern. 

Q. Did you read the name on the stern? A. I think I did. 

Q. You had fallen in with the Joseph, one unarmed vessel, 
and had made her a prize, and her crew prisoners? A. Yes. 

Q. You fell in with the Berkshire, another unarmed vessel, 
and passed under her stern and did not interfere with her. 
What was the reason of that difference ? 

A. We had no right to interfere with her. 

Q. Why not? 

A. She was not an enemy of the Confederate Government. 
The policy we were going on, as I understood it, was to take 
Northern vessels. 



OF THE SCHOONEK SAVANNAH. 39 

Q. Then you were not to seize all the vessels you met 
with ? 

A. No ; we were not to trouble any others but those that 
were enemies to the (Confederate Government. That was the 
orders from headquarters. The Captain showed no disposition 
to trouble any other vessels. 

Q. AVhen you were taken on board the Ferry were you 
put in irons ? A. Yes. 

Q. Where were those irons put on. Was it on board the 
. Savatmah, or after you were put on board the Perry ? 

A. When we got on board the Perry. 

Q. How soon after you went on board the Perry were 
those irons put on ? 

A. As soon as our baggage was searched. We were put in 
the between-decks on board the Perry and irons put on us im- 
mediately after we were searched. 

Q. Were you in irons when you were transferrrd from the 
Perry to the Minnesota? A. No, sir. 

Q. When were the irons taken off? 

A. On board the Perry, when we were going into the boat 
to go on board the Minnesota. 

Q. When you were on board the Minnesota were your irons 
put on again? A. They were, at night. 

Q. Was that the practice — taking them off in the day, and 
putting them on at night ? 

.i4."Yes; we were not ironed at all on that day on board the 
Minnesota. 

Q. When you arrived in Hampton Koads, — you have 
described the place where the Minnesota lay, about half a mile 
from the Rip Raps ? 

A. Yes. (A chart was here handed to witness, and he 
marked on it the position of the Minnesota off Fortress 
Monroe.) 

Q. As I understand it, you have marked the position of the 
anchorage of the Minnesota a little further up into the land 
than on a direct line between the Rip Raps and Fortress Mon- 
roe? A. Yes, sir. 

Q. You were then taken on board the Harriet Lane, from 
the Minnesota? A. Yes. 

Q. Where did the Harriet Lane lie when you were taken on 
board of her ? 

A. She was further up into the Roads, about half a mile 
from the Minnesota, westward. (Witness marked the position 
of the Harriet Lane on the chart.) 

Q. You are familiar with these Roads ? 

A. Yes, sir ; for years. 

Q. You know the town of Hampton? A. Yes. 



40 TRIAL OF THE OFFICERS AITO CREW 

A. And the college there? A. Yes. 

Q. How, with reference to the college at Hampton, did the 
Harriet Lane lie ? 

A. The college at Hampton appeared N. N. "W., and at a 
distance of a mile and a quarter, or a mile and a half. 

Q. How were you taken from the Minnesota on board the 
Harriet Lane? A. The ship's crew took us in a boat. 

Q. In one trip, or more trips ? 

A. We all went in one of the ship's boats. 

Q. On what day was that ? 

A. I do not bear in mind exactly. 

Q. Was the Harriet Lane ready to sail when you were taken 
on board of her? 

A. Yes ; she sailed in a few hours afterwards. 

Q. She had already had steam up ? 

A. Yes ; they were waiting for the commander, who was on 
shore. 

Q. How long were you lying on board the Minnesota after 
your arrival there ? 

A. I think we were transferred from the Minnesota on 
Saturday, the 20th of June. 

Q. How long had you been lying on board the Minnesota, 
in Hampton Roads? 

A. Two or three days ; I do not recollect exactly. 

Q, You have been a seafaring man a good many years ? 

A. I have been about 34 years at it? 

Q. In the capacity of master and mate? A. Yes, sir. 

Q. As pilot, also ? 

A . I have run pilot on all the coasts of America. 

Q. How often had you been in Hampton Roads ? 

A. Many a time. I sailed a vessel in and out in the West 
India trade. 

Q. How familiar are you with the localities about there ? 

A. I am so familiar that I could go in, either night or day, 
or into Norfolk. 

Q. Do you know the ranges, bearings, distances, depth of 
water, and all about it ? 

A. Yes ; and could always find my way along there. 

Q. {By a Juro7\) I understood you to say that the Savan- 
nah carried both the American flag and the Confederate flag ? 

A. Yes. 

Q. And that the American flag was flying when you were 
bearingon the Joseph ? A. Yes. 

^. What was the object of sailing under that flag ? 

A. I presume our object was to let her know that we were 
coming ; and, no doubt, the vessel heaved to for us. Suddenly 
enough we raised the Confederate flag. 



OF THE SCHOONER SAVANNAH. 41 

Q. Then it was deception ? 

A. Of course ; that was our business — that was as near as I 
understood it. 

William ITabeson called, and sworn. Examined by District 
Attorney Smith. 

Q. You are the Deputy Collector of the port of Philadel- 
phia ? A. Yes, sir. 

Q. Have you charge of the register of vessels there ? 

A. Yes. 

Q. Did you take this certified copy of the register of the 
•Joseph from the original book ? 

A. It is copied from the original book. 

Mr. JSvarts: It is a temporary register, dated 26th January, 
1861, showing the building of ithe vessel, and the fact of her 
owners being citizens of the United States. 

Q. Who was the master of the vessel then ? 

A. George H. Cables. 

Q. Do you know who was the master afterwards ? 

A. Yes; I saw him afterwards. That man (pointing to 
Captain Meyer) is the man. He was endorsed as master after 
the issuing of this register. 

By Mr. Evarts : 

Q. And you recollect this person being master of the vessel 
mentioned in that register ? A.l do, sir. 

George Thomas called, and sworn. Examined by District 
Attorney Smith. 

Q. Wliere do you reside? A. Quincy, Massachusetts. 

Q. What is your business ? A. Shipbuilder. 

Q. Do you know the brig Joseph ? 

A. I have known her ; I built her. 

Q. Where did you build her ? A. At Kockland, Maine. 

Q. Who did you build her for ? 

A. For Messrs. Crocket, Shaller, Ingraham, and Stephen 
N. Hatch — all of Kockland. 

Q. Were they American citizens ? 

A. They were all American citizens. 

Q. What was the tonnage of the vessel ? 

A. About 177 tons. She was a hermaphrodite brig. 

Q. Look at this description in the register and say whether 
it was the vessel you built. 

A. I have no doubt that this is the vessel. 

George H. Cables called, and sworn. Examined by District 
Attorney Smith. 
Q. Where do you reside ? A. Rockland, Maine. 



42 TRIAL OF THE OFFICERS AJ^D CREW 

Q. Look at the description of the brig Joseph, in this 
register, and see if you know her ? A. Yes, sir. 

Q. You were formerly master of the vessel ? A. Yes, sir. 

Q. Who was the master that succeeded you? 

A. I put Captain Meyer in charge of her. 

Q. You recognize Mr. Meyer here ? A. Yes, sir. 

Q. Did you own any part of that vessel? 

A. I bought a part of it, and gave it to my wife. 

A. Is your wife an American-born M'^oman ? A. She is. 

Q. Where does she reside ? A. In Rockland. 

Q. Do you know any others of the part-owners of her ? 

A. Yes; my brother and myself bought a three-eighth 
interest. 

Q, Where does your brother reside? A. In Rockland. 

Q. Is he an American-born citizen ? A. Yes. 

Q. Are you an American citizen ? A. Yes. 

Q. You spoke of some uther owner ? 

A. Yes ; Messrs. Hatch and Shaler. 

Q. Are they American citizens ? A. Yes. 

Q. Did you know all the owners? A. Yes. 

Q. Were they all American citizens ? A. Yes. 

Q. When did you put Meyer in charge of the vessel ? 

A. On the 26th or 27th of April last. 

^. Where? ^. In Philadelphia. 

Q. Where did you sail from? 

A. From Cardenas, in Cuba, on a round charter which I 
made at Cardenas myself with J. L. Morales & Co., consigned 
to S. H. Walsh & Co. 

Q. The ownership remained the same ? A. Just the same. 

Q. Was there any change up to the time of her capture ? 

A. No, sir. 

Thies iV. Meyer, examined by District Attorney Smith. 

Q. You were Captain of the brig Joseph at the time of 
her capture ? A. 1 was. 

Q. What American port had you sailed from ? 

A. Philadelphia. 

Q. Where did you go to ? A. Cardenas, in Cuba. 

Q. What port did you sail for from Cardenas ? 

A. Back to Philadelphia. 

Q. What cargo had you ? A. Sugar. 

Q. By whom was it owned ? 

A. By J. M. Morales & Co., of Cardenas. 

Q. When did you leave the port of Cardenas ? 

A. 28th May, 1861. 

Q. And you were captured by the Savannah on the 3d 
June? A. Yes. 



of" THE SCHOONER SAVANNAH. 43 

« 

Q. State the particulars of the capture by the Savannah of 
the brig Joseph from the time she first hove in sight ? 

A. Mr. Bridges, my mate, called me some time between 
•6 and 7 o'clock in the morning, and told me there was a sus- 
picious looking vessel in sight, and he wished me to look at 
her. I went on deck and asked him how long he bad seen her, 
he told me he had seen her ever since day -light. When I took 
the spy-glass and looked at her I found that she was a style of 
vessel that we do not generally see so far off as that. I hauled 
my vessel to E. JST. E., and when I found that she was gaining on 
me I hauled her E. by N. and so until she ran E. About 8 
o'clock she came near enough for me to see a rather nasty look- 
ing thing amid-ships, so that I mistrusted something ; but when 
I saw the American flag hanging on her main rigging, on her 
]3ort side, 1 felt a little easier — still, I rather mistrusted some- 
thing, and kept on till I found I could not get away at all. 
When she got within half a gun shot of me I heaved my ves- 
sel to, hoping the other might be an American vessel. 

Q. Had she any gun on board ? 

A. I saw a bi^ gun amid-ships, on a pivot. 

Q. How far on was she when you saw the gun ? 

A. About a mile and a half or two miles ; I could see it 
with the spy-glass very plainly. 

Q. Can you give us the size of the gun ? 

A. Not exactly; I believe it was an old eighteen pound 
cannonade. 

Q. How was it mounted? 

A. On a kind of sliding gutter, which goes on an iron piv- 
ot ; it was on a round platform on deck, so that it could be 
hauled round and round. 

Q. So that it could be pointed in any direction ? 

A. Yes, in any direction. After she came up alongside of 
me, Captain Baker asked me where I was from, and where 
bound, and ordered me with my boat and papers on board his 
vessel. I asked him by what authority he ordered me on board, 
and he said, by authority of the Confederate States. I lowered 
my boat and wenfc on board with two of my men. When I got 
alongside, Captain Baker helped me over the bulwarks, or 
fence, and said he was sorry to take my vessel, but he had to 
retaliate, because the North had been making war upon them. 
I told him that that was all right, but that he ought to do it under 
his own flag. He then hoisted his own flag, and ordered a boat's 
crew to go on board the brig. Some of them afterwards re- 
turned, leaving six on board the brig. 

Q. Did Captain Baker take your papers ? A. Yes. 

Q. Do you recognize Captain Baker in court ? 

A. Yes. As soon as they secured my crew they hauled the 



44 TEIAL OF THE OFFICEKS AND Ci^EW 

brig on the other tack, and stood into the westward, with the 
privateer in company. Captain Baker desired me to ask my 
mate to take the sun, as he had a chronometer on board, and 
the privateer had not. At 3 o'clock the privateer stood back to 
find out the longitude ; while so doing she got astern of the 
brig, and about that time the brig Perry hove in sight, steering 
southward and eastward. When they saw the brig Perry they 
hauled the privateer more on the wind, because she would go 
a point or two nearer to the wind than the brig Joseph, so as 
to cut off the Perry if they could. They went aloft a good 
deal with opera glasses, to find out what she was, and they 
made her out to be a merchant vessel, as they thought. Then 
they saw the Perry's quarter boats, and rather mistrusted her. 
They backed ship and stood the same as the Perry. The Per- 
ry then set gallant stern-sail, and kept her more free, because 
she got the weather-gauge of the privateer. 

Q. At the time of the capture of the Joseph by the Savan- 
nah did you observe all the crew, and in what attitude they 
were on deck ? 

A. I saw them working around the gun and hauling at it. 
Whether it was loaded or not, I could not say. 

Q. Were any of the men armed ? 

A. None at that time that I know of; but after I went on 
board I saw them armed with a kind of cutlass, and old-fash- 
ioned boarding-pistols ; and they had muskets with bayonets 
on. 

Q. At the time you left your vessel for the Savannah, in 
what attitude were the men on board the Savannah ? 

A. They were all around on deck. Perhaps half of them 
were armed. 

Q. How was the gun pointed ? 

A. The gun was pointing toward the brig. 

Q. Who were about the gun ? 

A. Before I went on board I saw that a man was stationed 
beside the gun ; I could not say which of them it was. 

Q. What crew had you ? 

A. I had four men, a cook, and mate. 

Q. Were they armed ? A. No, sir. 

Q. Were you armed ? 

A. I had one old musket that would go off at half-cock. 

Q. Was there any gun on board your vessel ? 

A. None except that. 

Q. How many men did you see on the deck of the Savan- 
nah ? A. Some 16, or 18, or 20. 

Q. Were you transferred to the Perry from the Savannah ? 

A. Yes. 

Q. And from the Perry to the Minnesota? A. Yes. 



OF THE SCHOONER SAVANNAH. 45 

Q. And from the Minnesota to the Harriet Lane ? 

A. No ; to the Savannah. I came to New York in the Sa- 
vannah. 

Q. Then the Savannah sailed to New York before the Har- 
riet Lane did ? A. Yes, sir. 

Q. Where were you born ? 

A. In the Duchy of Holstein, under the flag of Denmark. 

Q. You have been naturalized? A. Yes. 

Q. In what Court ? 

A. In the Court of Common Pleas, New York. 

Q. When did you come to this country ? 

A. In the winter of '47. 

Q. Did you hail from here ever since ? 

A. I bailed from almost all over the States. I never had 
a home until lately. I have hailed from here about a year. 
Before that, wherever my chest was was my home. 

Q. You have resided in the United States ever since you 
were naturalized ? 

A. Yes, sir ; I have never been out of it except on voy- 
ages. 

Q. You have continued to be a citizen of the United 
States since you were naturalized ? A. Yes. 

Q. And to reside in the United States ? A. Yes. 

Q. Do you recollect the names of your crew ? 

A. No, sir ; none except the mate ; his name was Bridges. 

Q. Is he here ? A. Yes. 

Q. When the Joseph was seized by the Savannah, what 
was done with the Joseph ? 

A. She was taken a prize, a crew of six was put on board 
of her, and they started with her to westward. 

Q. What became of the rest of the men of the Joseph be- 
sides yourself? 

A. They were carried on with the Joseph ; I continued on 
the Savannah. 

Q. When did you first observe, on board the Savannah, 
that the American flag was flying ? 

A. When she was within about a mile and a half off. 

Q. At what time, in reference to her distance from you, 
did she run up the Confederate flag ? 

A. The Confederate flag was not run up until after I had 
asked Captain Baker by what authority he ordered me to go 
on board ; then the Confederate flag was run up ; that was 
just before I went on board. 

Cross-examined hy Mr. Larocque. 
Q. Be good enough to spell your name. 



46 TRIAL OF THE OFFICEES AND CKEW 

A. Thies N". Meyer. 

Q. Was there any flag hoisted on board the Savannah at 
the time she was captured by the Perry, or immediately pre- 
ceding that ? 

A. They were trying to hoist the Stars and Stripes up, but 
it got foul and they could not get it up, and they had to haul 
it down again. 

Q. Then she had no flag flying at the time ? A. No, sir. 

The District Attorney here put in evidence the certified 
copy of the record of naturalization of Thies N. Meyer, cap- 
tain of the Joseph, dated 28th January, 1856. 

Horace W. Bridges, examined by District Attorney Smith. 

Q. You were mate of the Joseph when she was captured 
by the Savannah ? A. Yes. 

Q. Do you know the names of the others of the crew be- 
side yourself and the captain ? 

A. I do not know all of them. 

Q. State those you know ? 

A. The cook's name is Nash, and there was another man 
named Harry Quincy ; that is all I know. 

Q. Were they citizens of the United States ? 

A. I think they were both. 

Q. Are you a citizen of the United States ? 

A. Yes ; I was born in the State of Maine. 

Q. You have heard the statement of Captain Meyer as to 
the seizure of the vessel ? A. Yes. 

Q. You were on board the Joseph after she parted com- 
pany with the Savannah and sailed for South Carolina ? 

A. Yes, sir. 

Q. Under whose direction did she sail ? 

A. By the direction of the prize-master. 

Q. With a prize crew from the Savannah ? A. Yes. 

Q. Do you recollect the name of the prize-master ? 

A. Evans. 

Q. How many men did the crew consist of ? 

A. Six, with the prize-master. 

Q. What did they do with the vessel ? 

A. Took her into Georgetown. 

Q. What was done with you and the others of the crew ? 

A. We M-ere taken to jail at Georgetown. 

Q. What was done with the vessel ? 

A. I believe she was sold, from what I saw in the papers 
and what I was told. 

Q. Where were you taken from Georgetown ? 

A. To Charleston. 

Q. What was done with you there ? 



OF THE SCHOONEK SAVANNAH. 4T 

A. We were put in jail again. 

Q. How long were you kept in jail in Georgetown ? 

A. About 2 months and 20 days. 

Q. How long were you kept in jail in Charleston ? 

A. Three days. 

Cross-examined ly Mr. Larocqite. 

Q. You said that, while you were held as a prisoner at 
Georgetown, you saw something in reference to the sale of the 
Joseph in the papers ? A. Yes. 

Q. What was the purport of it ? 

A. She was advertised for sale. 

Q. Under legal process ? 

A. I do not know about that. I was also told of it by one 
of the prize crew that took us in. 

Q. You saw in the newspapers an advertisement of the 
sale ? A. Yes. 

Q. Was that of a sale by order of a Court ? 

A. It was a sale by order of the Sheriff or Marshal. 

Q. As a prize ? 

Objected to by District Attorney Smith, for two reasons : 

First — That it was a mere newspaper account ; and. 

Secondly — That the newspaper was not produced. 

After argument, the Court decided that there was no 
foundation laid for this hearsay evidence. 

Q. Did the advertisement state by whose authority the 
sale was to take place ? 

A. I do not recollect anything about that. 

Q. Do you recollect the name of a judge as connected with 
it? A. No, sir. There was no judge connected with the sale. 

Q. Do you recollect the name of Judge Magrath in connec- 
tion with it? 

A. No, sir ; I recollect his name in connection with some 
prize cases, but not in connection with the sale of the Joseph. 

Q. Since your arrival at New York, you have been exam- 
ined partially by the District Attorney, and have made a 
statement to him ? A. Yes. 

Q. Did you not state on that examination that while you 
were in confinement the vessel was confiscated by Judge Ma- 
grath, and sold at Georgetown ? 

A. No, sir ; I do not think I did. 

Q. You were released at Charleston, after a confiinement of 
three days ? A. Yes. 

Q. How did you get out ? A. The Marshal let us out. 

Q. While you were in confinement at Georgetown or 
Charleston was your examination taken in any proceeding 
against the bark Joseph, or in relation to her ? 



48 TRIAL OF THE OFFICERS AND CREW 

A. Yes, sir. In Georgetown. 

Q. By whom was that examination taken ? 

Mr. Evarts suggested that there was a certain method of 
proving a judicial inquiry. 

Judge Nelson : They may prove the fact of the examina- 
tion. 

Q. Before whom were you examined ? 

A. Before a man who came from Charleston. 

Q. Did he take your examination in writing? A. Yes, sir. 

Q. Did you learn what his name was ? 

A. I think his name was Gilchrist. 

Q. Were you sworn, as a witness ? A. Yes. 

Q. What proceeding was that, as you were given to under- 
stand, and what was the object of the examination ? 

A. Ihe object of it was to find out what vessel she was, 
what was her nationality, and who owned the cargo belonging 
to her. 

Q. And you gave your testimony on these subjects, ^. Yes. 

Q. Was it in written questions put to you? A. I think so. 

Q. And you signed your examination ? A. Yes. 

Q. And what came of it afterwards ? ^. I do not know. 

Q. Was it taken away by Mr. Gilchrist? A. I expect so. 

Q. Was there any other of the crew besides yourself exam- 
ined ? A. Yes ; all of them. 

Q. On the same subject? A. I expect so. 

Q. Were you present during the examination of them all ? 

A. No ; only at my own. 

Q. What newspaper was it that you saw that advertisement 
in ? A. 1 think in the Charleston Courier. 

Q. Do you recollect its date ? A. No, sir. 

Q. What had become of the vessel when you went to 
Charleston ? A. She was lying in Georgetown. 

Q. Do you know in whose possession, or under whose 
charge, she was ? ^4. I do not. 

Q. Was she in Georgetown, in the hands of the Marshal, 
to your knowledge ? 

A. No, sir ; not to my knowledge. I was in prison at the 
time. 

Commodore Silas H. Stringham, examined by District 
Attorney Smith. 

Q. You are in the United States Navy ? A. I am. 
Q. The Minnesota was the flag ship of the Atlantic Block- 
ading Squadron, oiF Charleston ? 

A. Yes, sir. I was the commanding officer. 

Q. The Minnesota took the prisoners oiF the Perry ? 



OF THE SCHOONER SAVANNAH. 49 

A. Yes ; on the 5t]i of June, in the afternoon. 

Q. State precisely where the transfer from the Perrj to the 
Minnesota was made ? 

A. I discovered, about mid-day, a vessel close in to Charles- 
ton, I stood off to make out what she was. A short time 
afterwards we discovered it was the Perry, and were surprised 
to find her there, as she had been ordered, some time previously, 
to Fernandina, Fla. She hailed us, and informed us she had 
captured a i^iratical vessel. The vessel was half a mile astern. 
Captain Parrott, of the Perry, came and made to me a report 
of what had taken place. I ordered him to send the prisoners 
on board, and sent a few men on board the Savannah to take 
charge of her during the night. The vessels were then anchored. 
The next morning I made arrangements to put a prize crew on 
board the Savannah, and send her to New York, and I directed 
the Captain of the Joseph to take passage in her. I took the- 
prisoners from the Perry, and directed the Periy to proceed, 
on her cruise, according to her previous orders. 1 then got the 
Minnesota imder weigh, and took the privateer in tow, and 
brought her close in t'» Charleston harbor, within 3 miles, so 
as to let them see that their vessel was captured. Some slaves 
in a boat told me next day that they had seen and recognized 
the vessel. 

3fr. Brady : The question you were called upon to answer 
is, as to the place where the prisoners were transferred from 
the Perry to the Minnesota. 

A. The transfer was made about 10 miles from Charleston' 
Harbor, out at sea. It was fully 10 miles off. 

Q. State the design of transferring the prisoners t© the 
Minnesota ? 

Objected to by Mr. Larocque. 

ARGUMENT ON THE JURISDICTION. 

Tlie District Attorney, Mr. Smith, stated that he would 
prove that every thing done from that time onward was done 
in pursuance of a design then conceived of sending the prisoners 
to the port of New York. 

Mr. Larocque contended that the naked question of juris- 
diction, or want of jurisdiction, could not be affected by show- 
ing that the prisoners were taken on board a particular vessel, 
with or without a particular design. All that affected that 
question was, the place where the prisoners were first taken to 
after they were captured. The only question their honors 
could consider was, whether, after their apprehension, the pri- 
soners were or were not brought within the District of Virginiaj 
so as to give the Court of Virginia jurisdiction, before they 
4 



50 TRIAL OF THE OFFICERS AND CREW 

were brought to New York. The fact that Commodore String- 
ham did, or did not, entertain in his own mind a design to 
bring the prisoners to New York, was of no relevancy what- 
ever. Their objection was based on the broad ground, that 
the statute had fixed the only District that was to have juris- 
diction of these criminals, namely, the District within which 
they are first brought. If they were first brought within the 
District of Virginia, the design which the Commodore might 
have entertained made no manner of difterence, and the fact 
could not be got rid of by any evidence to show that the de- 
sign was not to put themselves in that dilemma. 

Mr. James T. Brady submitted an argument on the same 
side. He said that the true test of the correctness of the 
objection could be ascertained thus : If a man were arrested 
anywhere on the high seas, supposed to be amenable to the 
Act of 1790, and was brought into a port of the United States, 
within a Judicial District of the United States, could he not 
demand, under the Act of Congress, to be tried in that Dis- 
trict? Could the commander of the vessel supersede that Act 
of Congress, and say he would take the prisoner into the port 
of New York, or any other port? AVhat ansM'er would that 
be to a writ of habeas corims sued out by either of these men 
confined on that shij), witiiin that Judicial District? If any 
such rule as that could prevail, the Act of Congress would be- 
come perfectly nugatory and subservient to the will of the in- 
dividual who apprehended prisoners on the high seas. If he 
had started on a ci'uise round the world, he could carry them 
with him, and, after returning to the United States, could take 
them into every District till he came to the one that suited him. 
Mr. Brady, therefore, claimed that it was wholly immaterial 
what might have been the design of Commodore Stringham ; 
and that the question of jurisdiction was determined by the 
physical fact, as to what was the first Judicial District into 
which these men were brought after being apprehended on 
the high seas. 

Mr. Evarts considered that this was a question rather of 
regularity of discussion, than a question to be now absolutely 
determined by the Court. He supposed that they were entitled 
to lay before the Court all the attendant facts governing the 
question of, whether the introduction of these criminals from 
the point of seizure on the high seas was, within the legal sense, 
made into the District of New York, or into that of Virginia — 
whether the physical introduction of prisoners, in tlie course of 
a voyage toward the port of New York, into the roads at 
Hampton, is, within the meaning of the law, a bringing^ them 
into the District of Virginia, li the substantial qualification 
of the course of the voyage from the point of seizure to the 



OF THE SCHOONER SAVANNAH. 51 

•place of actual debarcation was to affect the act, this was 
the time for the prosecution to produce that piece of evi- 
dence; and he supposed that that important inquiry should be 
reserved till the termination of tlie case, when the proof would 
be all before the Court. He suggested that no large ship 
could enter the port of New York without physically passing 
through what might be called the District of New Jersey; and 
argued that, in no sense of the act, and in no just sense, should 
these prisoners be tried in New Jersey, because the ship carry- 
ing them had passed through her waters. 

Mr. Larocque.^ for the defendants, contended that the ar- 
rest of the ]3arties as criminals was at the moment when they 
were takeu from on board the Savannah, placed on board 
the Perry, and put in irons. The learned gentleman (Mr. 
Evarts) had said that it would be impossible to bring them 
within the District of New York without first bringing them 
within the District of New Jersey ; but that objection was met 
by the fact that, over the waters of the bay of New York, the 
States of New Jersey and New York exercised concurrent 
jurisdiction, and therefore they came within the District of 
New York, to all intents and purposes. He proposed to refer 
to the authorities on which the point rested. 

In this case, the place M'here the arrest was made was the 
Perry, a United States cruiser, which, in one sense, was equiv- 
alent to a jDart of the national soil ; and he held that the idea 
under this statute was, that their apprehension and confinement 
from the moment they were arrested as criminals was complete, 
without bein^ required to be under legal process, it being suf- 
ficient that they were arrested by the constituted authorities 
of the United States. The moment they were brought within 
a Judicial District of the United States, that moment the juris- 
diction attached ; and no jurisdiction could attach anywhere 
«lse. This was an oifence committed on the high seas. All 
the Districts of the country could not have concurrent juris- 
diction over it ; and this very case was an exemplification of 
the injustice that would result from permitting an officer, in 
times of high political excitement, to have the privilege, at his 
mere pleasure or caprice, of selecting the place of jurisdiction, 
and the place of trial. Suppose these prisoners, instead of 
being landed at the first place where the vessel touched, could 
have been taken up the Mississippi river in a boat, and up the 
Ohio river in another boat, and landed within the District of 
Ohio, for the purpose of being tried there, — would not their 
honors' sense of justice and propriety revolt at that ? The 
same injustice would result in a diflerent degree, and under 
different circumstances, if, after taking these prisoners to Vir- 
ginia and ascertaining the difficulties in the way of their being 



52 TRIAL OF THE OFFICERS AND CKEW 

tried there, the officer could change their course and bring 
them into the port of I^ew York. The prisoners were entitled 
to thebeneiit of being tried in the District where they were first 
taken, in preference to any otber District ; and justice would be 
more snrelj done by holding a strict rule on that subject, by 
requiring that the facts should control, and that no mere in- 
tention on the part of the captors should be allowed to govern. 

One of the cases on this subject which had produced a mis- 
apprehension of the question was that of the United States 
vs. Tliompson, 1st Sumner's Reports, which was an indict- 
ment for endeavoring to create a revolt, nnder the Act of 1790.. 
It was in the Massachusetts District. The facts in the case 
were these : — " The vessel arrived at Stonington, Connecticut, 
and from thence sailed to New Bedford, Massachusetts, where 
the defendant was arrested, and committed for trial. It did 
not appear that he had been in confinement before. Judge 
Story ruled on the question of jurisdiction. He said: 'The lan~ 
guage of the Crimes Act of 1790 (Cap. 36, sec. 8) is, that the 
trial of crimes committed on the high seas, or in any place out 
of the jurisdiction of any particular State, shall be in the Dis- 
trict in which the ofi'ender is aj^prehended, or into which he 
shall first be brought. The proA'ision is in the alternative, and 
therefore the crime is cognizable in either District. And there 
is wisdom in the j)rovision ; for otherwise, if a ship should, by 
stress of weather, be driven to take shelter temporarily in any 
port of the Union, however distant from her home port, the 
master and all the crew, as well as the ship, might be detained, 
and the trial had far from the port to which she belonged, or to 
which she was destined. And if the oftender should escape 
into another District, or voluntarily depart from that into which 
lie was first brought, he would, upon an arrest, be necessarily 
required to be sent back for trial to the latter. And now there 
is no particular propriety, as to crimes committed on the high 
seas, in assigning one District rather than another for the place 
of trial, except what arises from general convenience ; and 
the present alternative j^i'ovision is well adapted to this pur- 
pose.' " 

This was noticed, in the first place, in the case of the United 
States vs. Edward C. Townsend, of which he (Mr. Larocque) 
held in his hand a copy of the exemplication of the record. 
Townsend was charged, in the District Court of Massachusetts, 
with piracy, in having been engaged in the slave trade, in 1858. 
He was captured on board the brig Echo, by a United States 
cruiser. That vessel first made the port of iiey West, putting 
in there for water ; and thence proceeded to Massachusetts, 
where the prisoner was landed, taken into custody under a 
warrant of the Commissioner, and the matter brought before 



OF THE SCHOONEK SAVANNAH. 53 

the Grand Jury, for the purpose of having an indictment found 
against him. In that case Judge Spiagae charged the Grand 
Jury that, under the law, the prisoner could only be tried in 
Key West, because that was the first port which the vessel had 
made after he had been captured and confined as a prisoner. 
Under that instruction the Grand Jury refused to find a bill of 
indictment ; and thereupon the District Attorney (Mr. Wood- 
bury) applied to the court for a warrant of removal, to remove 
him to Key West, for trial ; and also to have the witnesses re- 
cognized to appear at Key West, to testify on the trial. The 
counsel read a note from Mr. Woodbury on the subject, show- 
ing that Mr. Justice Clifford, of the Supreme Court of the 
United States, sat and concurred with Judge Sprague in grant- 
ing the warrant of removal. He referred also to another case, 
decided by Judge Sprague — the United States vs. Bird — • 
volume of Judge Sprague's Decisions, page 299 : " This indict- 
ment alleged an ofi'ence to have been committed on the high 
seas, and that the prisoner was first brought into the District 
-of Massachusetts. Questions of jurisdiction arose upon the evi- 
dence. The counsel for the prisoner contended that the offence, 
if any, was committed on the Mississippi river, and within the 
State of Louisiana; and, further, that if committed beyond the 
limits of that State, the prisoner was not fii-st brought into this 
District. Sprague, J., said that, if an offence be committed 
within the United States, it must be tried in the State and Dis- 
trict within which it was committed. Constitution Amendment 
6, If the offence be committed without the limits of the United 
States, on the high seas, or in a foreign port, the trial must be 
had in the District ' where the oftender is apprehended, or into 
which he may be first brought.' — Stat. 1790, cap. 9, sec. 8 ; 
Stat. 18"25, cap. 65, sec. 14. By being brought within a Dis- 
trict, is not meant merely being conveyed thither by the ship 
on which the offender may first arrive; but the statute contem- 
plates? two classes of cases : one, in which the offender shall 
have been apprehended without the limits of the United States, 
and brought in custody into some Judicial District; the other, 
in which he shall not have been so apprehended and brought, 
but shall have been first taken into legal custody, after his ar- 
rival within some District of the United States, and provides 
in what District each of these classes shall be tried. It does 
not contemplate that the Government shall have the election 
in which of two Districts to proceed to trial. It is true that, in 
United States ^^s. Thompson, 1 Sumner, 168, Judge Story seems 
to think that a prisoner might be tried either in tlie District 
where he is apprehended, or in the District into which he is 
first brought. But the objection in that case did not call for 
any careful consideration of the meaning of the word 'brought,' 



54: TEIAL OF THE OFFICEKS AND CREW 

as used in the statute ; nor does lie discuss tlie question, whether 
the accused, having come in his own ship, satisfies that requisition. 
In that case the party had not been apprehended abroad ; and 
the decision was clearly right, as the first arrest was in the 
District of Massachusetts. The statute of 1819, cap. 101, sec. 
1 (3 U. S. Statutes at Large, 532), for the suppression of the 
slave trade, is an example of a case in which an ofiender may 
be apprehended without the limits of the United States, and 
sent to the United States for trial. Ex parte Bollman vs. Swart- 
wout, 4 Cranch, 136." 

Their honors would observe that in both the cases cited, 
correcting the manifest misapprehension of Judge Story, the 
point was distinctly held that the question of jurisdiction was 
controlled exclusively by the fact as to what District the 
prisoner was first brought into after his arrest on the high seas, 
out of the United States, for a crime committed on the high 
seas. 

Judge Nelson stated that, as it was now late (half-past 5 P. 
M.), the question might go over till morning. 

Tlie counsel on each side assenting, the Jury were allowed 
to separate, with a caution from the Court against conversing 
in respect to the case. 

Adjourned to Thursday, at 11 A. M. 



SECOND DAY. 

Thursday, Oct. 24, 1861. 

The Court met at 11 o'clock A. M. 

Judge Nelson, in deciding the question raised yesterday, 
said: 

So far as regards the question heretofore under considera- 
tion of Judge Sprague, we do not think that at present in- 
volved in the case. We will confine ourselves to the decision 
of the admissibility of the question as it was put by the District 
Attorney and objected to, as respects the purpose with which 
the Minnesota, with the prisoners, was sent to Hampton Roads. 
We think that the fact of their being sent by the commanding 
officer of that place, with the prisoners, to Hampton Roads, is 
material and necessary ; and, in order to appreciate fully the 
fact itself, the purpose is a part of the res gestce that charac- 
terizes the fact. What efi'ect it may have upon the more gen- 
eral question, involving the jurisdiction of the Court, is not 
material or necessary now to consider. We think the question. 
is proper. 



OF THE SCHOONER SAVANNAH. 55 

Counsel for defendants took exception to the ruling of the 
Court. 

Commodore Stringham recalled. Direct examination re- 
sumed by Mr. Smith. 

Q. What was your object in transferring the prisoners from 
the Perry to the Minnesota ? 

A. Sending them to a Northern port. The port of New 
York was the port I had in my mind. To send them by the 
first ship from the station, as soon as possible, to a Northern 
port, for trial. I could not send them to a Southern port for 
trial. The only way I could do so w^ould be by guns. I could 
get no landing in those places otherwise ; and I could get no 
judge or jury to give them a trial. 

Mr. Larocqiie asked if, conceding the propriety of the in- 
quiry, the statement of the witness was competent, viz. : that 
he had a port in his mind. 

The Court: No; the question was not put in the shape I 
supposed. The question should have been — for what purpose 
or object did he send the prisoners in the Minnesota to Hamp- 
ton Roads? That is the point in the case — the intent with 
which the vessel was sent to Hampton Roads? 

A. I sent them there with the intention of sending them to 
a Northern port, fur trial. The Harriet Lane being the first 
vessel that left, after my arrival there, they were sent in the 
Harriet Lane to the Northern port of New York. 

Q. Why did you not take them in the Minnesota directly 
to New York, instead of taking them to Hampton Roads '? 

A. My station was at Hampton Roads, and I went there to 
arrange the squadron that might be there, and to get a supply 
of fuel for the ship. I do not think we had enough to go to 
New York, if we wished to go there. I had supplied vessels 
on the coast below, and had exhausted pretty nearly all the coal 
from the Minnesota when we arrived at Hampton Roads. 

Q. What directions did you give to the officers of the Har- 
riet Lane ? 

A. I gave no directions to the officers of the Harriet Lane. 
I gave directions to the commander of the Minnesota. I left 
on the day previous, I think, to their being transferred to the 
Harriet Lane, — giving directions that, as soon as she came down 
from Newport News, to send her to New York, with the 
prisoners. I had been called to Washington, by the Secretary 
of the Navy, the day before she sailed. 

Q. Are you aware of any facts which rendered it impossible 
to land the prisoners in the Yirginia District, or on the Vir- 
ginia shore ? 

A. It was impossible to land without force of arras, and 



5Q TRIAL OF THE OFFICERS AND CREW 

taking possession of any port. We could land them there, but 
not for trial, certainly. The Harriet Lane had been fired into 
but a short time previous ; and that was one cause of sending 
her to JSTew York. 

Q. Fired into from the Virginia shore ? 

A. Yes, sir ; from Field Point ; I should judge, about 8 miles 
from Norfolk port, on the southern shore, nearly opposite New- 
port News. I was not there, but it was reported to me. She 
was fired into, and she was ordered to New York to change her 
.armament. 

^. "Was that fort in the way, proceeding to Norfolk ? 

A. Not on the direct way to Hampton Roads, but a little 
' point on the left. 

1^. Would a vessel, going the usual way to Norfolk, be in 
range of the guns that were fired at the Harriet Lane ? 

A. Not of these ; but she would be in the range of four or 
five forts that it would be necessary to pass in order to land 
the prisoners at Norfolk. 

Q. What was the nearest port to where the Minnesota went 
with the prisoners ? 

A. The nearest port of entry was Norfolk. Hampton Roads 
was a little higher up. We were not anchored exactly at the 
Roads, but oft* Old Point, which is not considerad Hampton 
Roads. 

[Maj) produced.] I have marked the position of the 
Minnesota on this map, in blue ink. [Exhibits the position to 
the Court.] 

^. State the position of the Minnesota ? 

A. That is as near as I can put it — between the Rip Raps 
,and Fortress Monroe — a little outside of the Rip Raps. 

Q. In what jurisdiction is the Fort ? 

A. In the United States. 

(Objected to, as matter of law.) 

Q. At what distance were you from Fortress Monroe ? 

A. About three-quarters of a mile, and nearly the same 
from the Rip Raps. 

Q. What distance from Norfolk? 

A. I think 14 miles, as near as I can judge ; 12 or 14. • 

Q. Had you any instructions from the Government, in 
respect to any prisoners that might be arrested on the high seas, 
i\s to the place they were to be taken to ? 

A. Not previous to my arriving at Hampton Roads. After 
that, I had. Those instructions were in writing. 

Q. You had no particular or general instructions previous 
to that ? 

A. No, sir ; it was discretionary with me, previous to that, 
where to send the prisoners I had. 



OF THE SCHOONER SAVANNAH. 57 

Q. When vessels are sent from one place to another, state 
■whether it is not frequently the case that they take shelter in 
roadsteads ? 

(Objected to. Excluded.) 

Q. Where did your duties, as flag-officer of the squadron, 
require you to be with your ship, the Minnesota ? 

(Objected to. Excluded^ 

Q. Where do Hampton Koads commence on this map, and 
where end ? 

A. In my experience, I have always considered it higher 
up than where we were anchored. This is anchoring off For- 
tress Monroe, when anchoring there. When they go a little 
higher up, they go to Hampton Roads ; and, before the war, 
small vessels anchored up in Newport News, in a gale of wind. 

Q. Where did the Minnesota anchor, in respect to Hamp- 
ton Eoads ? • 

A. We anchored outside, sir. I can only say this from the 
pilot. When commanding the Ohio, he asked me whether I 
wished to anchor inside the Roads. Baltimore pilots have per- 
mission to go into Hampton Roads, and no farther. That is 
considered as neutral ground for all vessels. 

By the Court : 

Q. What is the width of the entrance to the Hampton 
Roads ? 

A. I should judge about 3|- miles, or 3^, from Old Point 
over to Sewall's Point. I have not measured it accurately. It 
is from 3 to 4 miles. 

Bij Mr. Smith : 

Q. Was the Minnesota brought inside or outside of a line 
drawn from Old Point to the Rip Raps ? 

A. A little outside of the line, sir. 

By a Juror : 

Q. Would a person be subject to any port-charges where 
the Minnesota lay ? A. No, sir. 

Defendants' counsel objected to the question and answer. 

The Court : 

Q. What do you mean by port dues ? 

A, I mean they do not have to enter into the custom-house 
to pay port-charges. It is not a port of entry, that compels 
them to carry their papers. The only port-charges I know of 
are the pilot-charges, in and out. 

(The Court ruled it out as immaterial.) 

Cross-examined hy Mr. Brady. » 

Q. 1 want, for the purpose of preventing any misapprehen- 
sion, to ask if there is any line that you know of, which you 



58 TRIAL OF THE OFFICERS AND CREW 

could draw upon that map, distinguishing the place at which 
Hampton Roads begins ? 

A. Nothing only among sea-faring men ; — -just astlie lower 
bay of New York, which is considered to be down bc4ow the 
Southwest Spit. When anchored between this and that, it is 
called off a particular place, as Coney Island, &c. So, there, 
after you pass up from Fortress Monroe, it is called Hampton 
Roads. 

Q. Is there any specific point you can draw a line from on 
the map that distinctly indicates where Hampton Roads be- 
gin ? A. I cannot, sir. 

Q. Designate where the Harriet Lane was ? 

A. I cannot say, sir. She was at Newport News when I 
left, and came down the next day, I believe, and took the 
prisoners on board and proceeded to New York, 
a Q. The Minnesota was anchored ? 

A. Yes, sir, but not moored ; with a single anchor. 

Q. How much cable was out ? 

A. From 65 to 70 fathoms, I think. I generally order 65 
fathoms ; but the captain gave her 5 fathoms more. 

Q. Would she swing far enough to affect the question 
whether she was in or outside of Hampton Roads, as you un- 
derstood it? A. No, sir. 

Q. Had you often been there before ? 

A. I had, sir, often. I was there 51 years ago. I started 
there. 

Q. Did you ever have occasion, for any practical purposes, 
to locate where Hampton Roads began ? 

A. Yes, sir ; several times I have anchored there with ships 
under my command, and the pilots have said, " Will you go 
up into the Roads?" and I said, "Yes;" and we never an- 
chored within two or three miles of where we lay with the 
Minnesota. 

Q. But it was not your object to get at any particular line 
which separated Hampton Roads ? 

A. No ; we considered it a better anchorage. The only 
importance was a better anchorage. 

Q. You had no instructions of any kind in regard to the 
prisoners before you left for Washington ? 

A. 1 would say I had not, before I arrived at Hampton 
Roads, or at Old Point. 

Q. Did you receive any between the time of your arrival 
and your departure for Washington ? 

A. I cannot say, but I think not, 

Q. The only instructions you gave were that, when the 
Harriet Lane came up, the prisoners should be removed, and 
sent to New York ? 



OF THE SCHOONER SAVANNAH. 59 

A. I gave orders that they should be sent to New York 
and delivered to the Marshal. 

Q. There wonld be no difficulty to transfer prisoners to 
Fortress Monroe? A. No, sir, no difficulty. 

Q. Could they not have been taken to Hampton ? 

A. I think not. Our troops had abandoned Hampton and 
moved in, 1 think. There was nothing there to land at Hamp- 
ton. We may have had possession at that time. 

Q. Do you know of any obstacle whatever to these men 
having been taken ashore at Old Point Comfort and carried 
to Hampton ? 

A. 1 went up twice to Washington, with Colonel Baker, 
when he abandoned Hampton ; but I think at the time the 
prisoners were on board we had the occupation of Hampton 
by our troops. My impression is, we occupied it partly with 
our troops at that time. I went to Washington at another 
time, when the troops had abandoned Hampton, and Colonel 
Baker took his soldiers up in the same boat. 

Q. A college has been described on shore, and the locality 
described. Was it not occupied as an hospital ? 

A. Yes, sir, at the time the Minnesota arrived. It is not 
in Hampton. 

Q. When the Minnesota arrived with the prisoners was 
not that building in possession of our Government ? 

A. It was, sir, I believe. I was not in it. 

By Mr. Evarts : Is not the hospital at Old Point ? 

A. Near Old Point. 

By Mr. Brady : Designate on the chart where it is ? 

A. I have done so, — the square mark, on the shore, in the 
rear of the fort, on the Virginia shore. 

By the Court : How much of a town is Hampton ? 

A. There is none of it left now. I suppose it was a town 
of 4,000 or 5,000 inhabitants. 

Q. Was it not formerly a port of entry ? 

A. No, sir, I believe not ; not that I know of. That was 
4 or 5 miles otf from the vessel. 

By Mr. Brady : How far was Hampton from Fortress 
Monroe ? ^. I should judge 3 miles. 

Q. I ask again, before you left the Minnesota, after the 
arrival of the prisoners, had you any instructions from Wash- 
ington in regard to these prisoners ? 

A, I cannot bring to my mind whether I had any or not^ 
I had instructions, subsequent to my arrival, about all prison- 
ers, and that was the reason why I came here. There wa& 
some question as to why I came with 700 prisoners ; but I had 
instructions to bring all prisoners taken, and turn them over 
to Colonel Burke, of New York. 



60 TRIAL OF THE OFFICERS AND CREW 

Q. After you arrived at Washington did you receive any 
instructions in regard to these prisoners ? 

A. I do not know that I did. I had some discussion in 
"Washington, 

Q. Did you communicate from Washington, in any way, 
to Fortress Monroe, or the Minnesota, in regard to the prison- 
ers ? A. No, sir. 

Q. They went forward under the directions you gave be- 
fore leaving to go to Washington ? 

A. They did, sir ; I gave the instructions. I did not know 
whether the Harriet Lane woukl be ready. She was waiting 
until the vessel arrived to relieve her from the station. 

Q. Was General Butler at Fortress Monroe at the time of 
the arrival of the prisoners ? A. He was, sir, 

Q. Did you confer with him about it ? A. No, sir. 

Q. Neither then nor at Washington ? A. No, sir. 

Q. Was there any conversation between you and him in 
regard to that ? 

A. I do not think there was until after my return and the 
prisoners had gone to New York. 

I^e-direct. 

Q. How large a space is occupied by the hospital to which 
you have referred ? 

A. I cannot give the number of feet, but I think about 150 
feet square. I never was in it but once, when I passed in for 
a moment, and right out of the hall. 

David C. Constable called by the prosecution and sworn. 
Examined by Mr. Smith. 

Q. You are a Lieutenant in the United States Navy % 

A. Not now ; I am First Lieutenant of the Harriet Lane. 
We were then serving under the Navy; I am now in a reve- 
nue cutter. 

Q. Were you on board the Harriet Lane when she received 
the prisoners from the Minnesota? A. I was, sir. 

Q. Who did you receive your orders from on the subject? 

A. Captain Van Brunt, of the Minnesota. 

Q. Was that a verbal order? A. No ; a written one, sir, 

Q. Was it an order to bring the prisoners to New York ? 

A. To proceed with the prisoners to New York, and deliver 
them to the civil authorities, I think. 

Q. Where was the Harriet Lane, in respect to the Kip Raps 
and fort at Old Point Comfort, when the prisoners were taken 
on board from the Minnesota? 

A. We were about half a mile, I should judge, from the 
Minnesota ; a little nearer in shore. 



OF THE SCHOONEE SAVANNAH. 61 

Q. Where had the Harriet Lane come from? 

A. From ^Newport News. 

Q. Did she, or not, come from Newport News in pursuance 
of the object to go to New York? 

A. Yes, sir ; "although at the time we had received no or- 
ders in regard to any prisoners. We were coming on for a 
change of armament and for repairs. 

Q. The Harriet Lane had been fired into ? 

A. She had, sir. 

Q. Where was she when fired into? 

(Objected to. Offered to show the impossibility of land- 
ing. Ruled out as immaterial.) 

Q. How was the transfer made from the Minnesota to the 
Harriet Lane? A. By boats. 

Q. Show on this map where the Harriet Lane was when 
the transfer was made of the prisoners from the Minnesota, 
and also where the Minnesota lay ? 

[Witness marked the place on map.] 

Q. State the relative position of the vessels as you have 
marked it ? 

A. I should judge we were about a mile from Old Point, in 
about eleven fathoms of water, and probably about a mile from 
the Rip R-aps. I do not remember exactly. 

Q. The Harriet Lane was about half a mile further up? 

A. Yes, a little west of the Minnesota, but farther in shore. 

Q. What is your understanding in respect to where Hamp- 
ton Roads commence, in reference to the position of these 
vessels ? 

A. I had always supposed it was inside of Old Point and 
the Rip Raps, after passing through them, — ^taking Old Point 
as the Northern extremity, and out to SewalPs Point. 

Q. How in respect to where the Harriet Lane lay ? 

A. I consider she was off Old Point, and not, properly 
speaking, in Hampton Roads. 

Q. The Minnesota was still further out ? 

A. Yes, sir, a very little. 

Q. You brought the prisoners to New York in the Harriet 
Lane and delivered them to the United States Marshal at 
New York ? A. Yes, sir. 

Q. You delivered them from your vessel to the United 
States Marshal ? 

A. Yes, sir ; the United States Marshal came alongside 
our ship, while in the Navy Yard, in a tug, and they were 
delivered to him. 

Q. Do you remember the day they arrived at New York ? 

A. On the 25th of June, in the afternoon. 



62 TKIAL OF THE OFFI0EE8 AND CREW 

Q. In what service was the Harriet Lane ? 
A. In the naval service of the United States. 

C?vss-examined by Mr. Brady. 

Q. As has ah-eady been stated, there was no difficulty about 
landing the prisoners from the Minnesota at Fortress Monroe, 
or at the College Hospital, or at Hampton. Was there any 
difficulty in takmg them to Newport News ? 

A. No, sir ; I suppose they might have been taken to New- 
port News. 

Q. Who was in possession of Newport News at that time? 

A. The United States troops, sir. Our vessel had been 
stationed there for six weeks preceding. 

I^e-direct. 

Q. What occupation had the United States of Fortress Mon- 
roe, and of this hospital building, and of Newport News ? 
Was it other than a military possession ? 

(Objected to by defendants' counsel.) 

The Court : It is not relevant. 

3fr. Evarts : We know there was no physical difficulty in 
landing them ; we want to know whether there was any other. 

The Court : We need not go into any other. Practically, 
they could have been landed there. That is all about it. As 
to being a military fort, and under military authority, that is 
not of consequence. 

Mr. Evarts : As to military forts receiving prisoners at all 
times ? 

The Court : We do not care about that. It is not import- 
ant to go into that. We know it is a military fort, altogether 
under military officers. Civil justice is not administered there, 
I take it. 

Daniel T. TompTcins called by the Government ; sworn. 
Examined by Mr. Smith. 

Q. You were Second Lieutenant on the Harriet Lane ? 

A. I M'as, sir. 

Q. You were present at the transfer of these prisoners from 
the Minnesota to the Harriet Lane? A. Y^es, sir. 

Q. Yoii were with them to New Y^ork? 

A. Yes ; but I was ashore when they were delivered here. 

Q. Y^ou accompanied the prisoners on the voyage ? 

A. Yes, sir. 

Q. Where did the Harriet Lane lie at Hampton Koads, in 
relation to the Fort and Rip Raps ? 

A. I should think we were about a mile from the Rip Raps, 
and probably three-fourths of a mile from the Fort. 



OF THE SCHOONEK SAVANNAH. 63 

Q. At the time of the transhipment ? A. Yes, sir. 

Q. The transhipment was made in boats? 

A. Yes, sir, — in a boat from the Minnesota. I believe all 
-came in one boat. 

Q. Where do Hampton Eoads commence, as you under- 
stand, in respect to where the Harriet Lane was? 

A. I think they commence astern of where we lay ; a little 
to the westward, as we were lying oflf of Old Point. 

Q. L">ok upon that majD and indicate, by a pencil, where 
the vessels lay, without any reference to the marks already 
made there — in the first place the Minnesota and then the Har- 
riet Lane — when the transhipment was made, taken in rela- 
tion to the Fort and the Rip JRaps ? 

Witness marks the positions, and adds : We were about 
half a mile from the Minnesota, I should say. 

J. Buchanan Henry called by the prosecution ; sworn. 
Examined by Mr. Smith. 

Q. In June and July last you were United States Commis- 
sioner? A. From the 15th of June. 

Q. [Producing warrant.] Is that your signature ? 

A. It is. 

Counsel for prosecution reads warrant, issued by J. Bu- 
chanan Henry, in the name of the President, addressed to the 
Marshal, dated June 26, 1861. 

(Objected to as irrelevant. Objection overruled.) 

Q. This warrant was issued by you ? A. It was, sir. 

Q. On an affidavit filed with you? A. Yes, sir. 

Cross-examined. 

Q. Against all these prisoners ? A. Yes, sir. 

Defendants take exception to the admission of the testi- 
mony. 

The U. S. District Attorney was about to call the Marshal, 
to prove that he arrested the prisoners. 

Defendants' counsel admitted the prisoners were arrested, 
under this warrant, by the Marshal, in this district. 

Mr. Brady : Perhaps you can state, Mr. Smith, where 
they were when arrested under that warrant ? 

Mr. Smith : They had been brought to the Marshal's office, 
I think. 

Mr. Brady : They were in the Marshal's office when ar- 
rested ? 

Mr. Smith : They were brought to the Marshal's office 
before the writ was served. 



64 TRIAL OF THE OFFICERS AND CREW 

Ethan Allen called by the prosecution ; sworn. Examined by 

Mr. Smith. 

Q. YoiT are Assistant District Attorney \ A. \ am, sir. 

Q. And were in June last ? A. Yes, sir. 

Q. Do you remember, at my request, calling upon the pris- 
oners now in Court? A. I do, sir. 

Q. Did you call upon every one ? 

A. I called upon all the prisoners at the Tombs. 

Q. Ui^on each one separately ? 

A. I called upon them in the diiferent cells. They were 
confined two by two. 

Q. Had you previously attended, as Assistant District Attor- 
ney, upon the examination of these prisoners ? 

A. I had, uj)on one or two occasions. 

Q. Were the prisoners all present on those occasions ? 

A. Tliey were present once, I distinctly recollect. 

Q. Did you then talk with them % 

A. No, sir; I addressed myself to the Commissioner in 
adjourning the case. 

Q. Was there any examination proceeded with ? 

A. There was no examination. 

Q. State what you said to the prisoners, the object of your 
calling, and what their reply was. I ask, first, did you make 
a memorandum at the time ? 

A. I did, sir. 

Q. Was it made at the very time you asked the questions ? 

A. I took paper and pencil in hand, and asked the questions 
which you requested, and took a note of it. 

Q. What was the object of your calling upon them ? 

A. To ask them where they were born ; and, if born else- 
where, were they naturalized. 

Q. Did you state for what purpose you made this inquiry ? 

^. I do not recollect that I made any statement to the 
prisoners for what purpose I wanted the information. I told them 
1 wanted it. They seemed to recognize me as Assistant Dis- 
trict Attorney ; and as to those that did not recognize me, I 
told them I was Assistant District Attorney. The memorandum 
produced is the one I made at the time. 

Q. Referring to that, give the statements that were made 
by each of the prisoners in reply to your questions ? 

A. Henry Cashman Howard said he was born in Beaufort, 
North Carolina. 

Charles Sydney Passalaigue said he was born in Charleston, 
South Carolina. 

Joseph Cruse del Carno said he was born in Manilla, in the 
Chinese Seas, and was never naturalized. 

Thomas Harrison Baker said he was born in Philadelphia. 



OF THE SCHOONER SAVANNAH. 66 

John Harleston said he was born in Anderson District, or 
County, in South Carolina. 

Patrick Daly was born in Belfast, Ireland. Has never been 
naturalized. 

William C. Clarke born in Hamburg, Germany. Never 
naturalized. 

Henry Oman born in Canton. Never was naturalized. 

Martin Galvin born in the County Clare, Ireland. Not 
naturalized. 

Ricliard Palmer born in Edinburgh. Never naturalized. 

Alexander C. Coid was born in Galloway, Scotland, Was 
naturalized in Charleston, — about 1854 or 1855, he thinks. 

John Murphy born in Ireland. Never naturalized. 

Mr. Brady : We will insist, hereafter, that this admission 
of naturalization cannot be used at all. 

Mr. Evarts : We will concede that. 

By Mr. Smith: Do you remember asking the prisoners 
for their full names ? 

A, I asked them particularly for their full names. 

Q. Are they correctly stated in the indictment ? 

A. They are stated from the memorandum which I then 
took ; that is my only means of recollection. 

M7\ Smith: The Assistant District Attorney desires me 
to state that he did not know that he was to be called as a wit- 
ness in the case; that if he had had any idea that he would be 
called as a witness, he would not have made the visit. Yester- 
day, for the first time, he ascertained that he would be called. 
I would also state that I did not send him there for the pur- 
pose of making him a witness, but with the object of obtaining 
particulars which might render the allegations in the indict- 
ment entirely accurate in respect to every detail. 

Mr. Smith added : I now close the case for the prosecution. 
5 



m TKIAL OF THE OFFICERS AND CREW 

OPENING FOR THE DEFENCE. 

Mr. Larocque opened the case for the defence. He said : 

May it please the Court, and you, Oentleoiien of tJie Jury : 

We have now reached that stage in this interesting trial 
where the duty has been assigned to me, by my associates in 
this defence, of presenting to you tlie state of facts and the rules 
of law on which we expect to ask from you an acquittal of 
these prisoners. I could wish that it had been assigned to 
some one more able to present it to you than myself, for I feel 
the weight of this case pressing upon me, from various consid- 
erations connected with it, in a manner almost overpowering. 
I think that we have proceeded far enough in this case for you 
to have perceived that it is one of the most interesting trials 
tliat ever took place on the continent of America, if not in the 
civilized world. For the first time, certainly in this controversy, 
twelve men are put on trial for their lives, before twelve other 
men, as pirates and — as has been well expressed to you by the 
learned District Attorney who opened this case on behalf of 
the prosecution — as enemies of the human race. If you have 
had time, in the exciting progress of this trial, to reflect in 
your own minds as to what the import of these words was, it 
must certainly, ere this, have occurred to you that, in regard 
to these prisoners, whatever may be the legal consequences of 
the acts charged upon them, it was a misapplication of the 
term. Look for a moment, gentlemen, first, at the position of 
things in our country under which this trial takes place. All 
these prisoners come before you from a far distant section of 
the country. Some of them were not born there — some of 
them were. At the time when these events occurred all of the 
prisoners lived there, and were identified with that country, 
with its welfare, with its Government, whatever it was. They 
had there their homes, their families, everything which at- 
taches a man to the spot in which he lives. Those of them 
who had not been born in America had sought it as an asy- 
lum. They had come from dis ant regions of the earth — some 
from the Chinese Sea and the remote East — because they had 
been taught there that America was the freest land on the 
globe. They had lived there for years. Suddenly they had 
seen the country convulsed from one end to the other. They 
had seen hostile armies arrayed against each other, the com- 
batants being for the most part divided by geographical lines 
as to the place where they were born or as to the State in 
which, they lived. This very morning a newspaper in the city 



OF THE SCHOONER SAVANNAH. 67 

of New York estimates the numbers thus arrayed in hostility 
against each other at no less than seven hundred thousand 
souls. Tliese prisoners have the misfortune, as I say, of being 
placed on their trial far from their homes. They have been 
now in confinement and under arrest on this charge for some 
four or five months. During that whole period they have had 
no opportunity whatever of communicating with their friends 
or relatives. Intercourse has been cut off. They have had no 
■opportunity of procuring means to meet their necessary ex- 
penses, or even to fee counsel in their defence. Without the 
solace of the company of their families, immured in a prison 
among those who, unfortunately, from friends and fellow-coun- 
trymen have become enemies, they are now placed in this 
-Court on trial for their lives. You will certainly reflect, gen- 
tlemen, that it was not for a case of this kind that any statute 
punishing the crime of piracy was ever intended to be enacted. 
You will reflect, when you come to consider this case, after the 
evidence shall have been laid before you, and after you have 
received instructions from the Court, that however by techni- 
cal construction our ingenious friends on the other side may 
endeavor to force on your minds the conviction that this was a 
case intended to be provided for by statutes passed in the year 
1790, and by statutes passed in the year 1820, — it is a mon- 
strous stretch of the provisions of those statutes to ask for a 
conviction in a case of this kind. And I may be permitted, 
with very great respect for the constitutional authorities of 
our Government, to which we all owe our allegiance and re- 
spect, to wonder that this case has been brought for trial before 
you. I cannot help, under the circumstances surrounding 
these trials — for while you are sitting here, another jury is 
passing on a similar case in the neighboring City of Philadel- 
phia — attributing the determination of the Government to sub- 
mit these cases to the judicial tribunals at this time to a desire 
to satisfy the mind of the community itself, which has been 
naturally excited on this subject, that these men are not pirates 
within the meaning of the law. And I do most sincerely hope, 
for the credit of our Government, that that is the object which 
it has in view, and that the heart of every officer of the Gov- 
ernment, at Washington or elsewhere, will be most rejoiced at 
the verdict of acquittal, which, I trust, on every consideration, 
you will pronounce. We all know that in a time of civil com- 
motion and civil war like this, the minds of the people, partic- 
ularly at the incipient stages of the controversy, become terri- 
bly excited and aroused. We could not listen, at the outbreak 
of these commotions, to any other name but that of pirate or 
traitor, as connected with those arrayed against our Govern- 
ment and countrymen. One of the misfortunes of a time of 



68 TRIAL OF THE OP^FICEKS AND CKEW 

popular excitement like this is, that it pervades not only the 
minds of the community, but reaches the public halls of legis- 
lation, and the executive and administrative departments of 
the Government. And it is no disrespect, even to the Chief 
Magistrate of the coimtry to say, that he might, in a time like 
this, put forward proclamations and announce a determination 
to do what his more sober judgment would tell bim it was im- 
prudent to announce his intention of doing. You will all 
probably recollect that when this outbreak occurred the Gov- 
ernment at Washington announced the determination of treat- 
ing those who might be captured on board of privateers fitted 
out in the Confederate States as pirates. Such an announce- 
ment once made, it is difficult to depart from. And therefore 
I do most sincerely hope that the administration in "Washing- 
ton, as my heart tells me must be the case, are looking at these 
trials in progress here and in Philadelphia, with an earnest de- 
sire that the voice of the Juries shall be the voice of acquittal, 
— thus disembarrassing the Government of the trammels of a 
proclamation which it were better, perhaps, had never been 
issued. This civil war had at that time reached no such pro- 
portions as those which it has since acquired. It was then a 
mere beginning of a revolution. The cry was, that Washing- 
ton was in danger. There were no hostile forces arrayed on 
the opposite sides of the Potomac. There was a fear that they 
would soon make their appearance ; and there was also an earn- 
est hope — which I lament most deeply has not been realized 
— that that outbreak would be stopped in its commencement,, 
and that no armies approaching to the proportions of those 
which have since been in hostile conflict would be arrayed on 
the field of battle. Look at the state of things now. Scarcely 
a day elapses on which battles are not taking place, from one 
end to the other of this broad continent — in Virginia, Ken- 
tucky, Missouri, and other States — and where the opposing 
forces are not larger than those that met in any battle of the 
Revolution which gave this country its independence. Does 
humanity, which rules war as well as peace, permit that while 
whole States, forming almost one half of the Confederacy; have 
arrayed themselves as one man — for aught we know to the 
contrary — while they think, no matter how mistakenly, that 
they have grievances to be redressed, and that they have a 
right to exercise that privilege of electing their own Govern- 
ment, which we claimed for ourselves in the day of our own 
Eevolution — does humanity, I say, permit, in such a state of 
things, one side or the other to treat its opponents as pirates 
and robbers, as enemies of the human race ? Gentlemen, our 
brave men who are fighting our battles on land and sea have a 
deep interest in this question ; and if the votes of our whole 



OF THE SCnOONEE SAVANNAH. 69 

army could be taken on the question of whether, as a matter 
•of State policy, these men should be treated as pirates and 
robbers, I believe, in my heart, that an almost unanimous vote 
would go up from its ranks not to permit such a state of things 
to take place. 

I wish to say a word here, gentlemen, preliminarily, on 
another subject, and that is, what the duty and right of coun- 
sel is on a trial of this kind. I hold the doctrine that counsel, 
when he appears in Court to defend the life of one man, much 
less the lives of twelve men, is the alter ego of his clients — 
that he has no trammels on his lips, and that his conscience, 
and his duty to God, and to his profession, must direct him in 
his best efforts to save the lives of his clients, — and that it be- 
comes his duty, regardless of all other considerations, except 
adherence to truth and the laws of rectitude, to present every 
argument for his clients which influenced their minds when 
they embarked in the enterprise for which they are placed 
before the Jury on trial for their lives. It is not the fault of 
counsel, in a case of this kind, if he is obliged to call the atten- 
tion of the Jury to the past history of his own country, to the 
cotemporaneous expositions of its Constitution, to the decisions 
of its Courts of Judicature, and of the highest Court of the Union, 
which have laid down doctrines with reference to the Constitu 
tion of the Government, which are accepted at the present 
day, entirely incompatible with the success of this prosecution. 
In doing so, you will certainly perceive that, however much 
these men on trial for their lives may have been deceived and 
deluded, as I sincerely think they have been to a very great 
extent, and, as was frankly admitted by the learned counsel 
who opened the case for the prosecution, that at least, there 
was the strongest excuse for that deception and delusion among 
those of them who had read the Constitution of their Govern- 
ment, who had read its Declaration of Independence, who had 
read the cotemporaneous exposition of its Constitution, put 
forward by the wisest of the men who framed it, and on the 
honeyed accents of whose lips the plain citizens of the States 
reposed when they adopted the Constitution. If it had been 
their good fortune to be familiar with the decisions of its 
Courts, they had learned what tiie Supreme Court had said with 
reference to the sovereign rights of the States, and with refer- 
ence to the strict limit and measure of power which they had 
conceded to the General Government, and there was, at least, 
a very strong excuse for their following those doctrines, how- 
ever unpopular they may have become in a later day of the 
Republic. 

One of the reasons why I most regret that the Government 
;has thought fit to force these cases to trial at the present time 



70 TRIAL OF THE OFFICERS AND CREW 

is, that it forces the counsel for the prisoners, in the solemn dis- 
charge of their duty to their clients, whose lives hang in the bal- 
ance, to call the attention of the Jury and the attention of the 
public to those doctrines, doing which , under other circumstances, 
might be considered as a needless interference with the efforts 
of the Government to restore peace to the country. But, as I 
say, I hold that our clients in this case have a right to all the 
resources of intelligence with which it has pleased God to' 
bless their counsel. They have a right to every pulsation of 
their hearts, and I do not know that I can sum up the whole 
subject in more approj)riate language than that used by the 
Marquis of Beccaria, which w^as quoted by John Adams on 
the trial of some British soldiers in Boston, who, in a time of 
great public excitement, had shot some citizens, and were 
placed on trial for their lives before a Jury in Boston. H& 
quoted and adopted on that occasion, as his own, these memo- 
rable words of that great philanthropist : " If I can be but the 
instrument of saving one human life, his blessing and tears of 
gratitude will be a sufficient consolation to me for the con- 
tempt of all mankind." I hold, with John Adams, that coun- 
sel on a trial like this has no right to let any earthly considera- 
tion interfere with the full and free discharge of his duty to his 
client ; and in what I have to say, and in my course on this 
trial, I will be actuated by that feeling, and by none other. 
And, gentlemen, I love my country when I say that; I feel 
as deep a stake in her prosperity as does any man within the 
hearing of my voice, and as deep a stake as any man who lives 
under the protection of her flag. 

The Jury have a great and solemn duty to discharge on 
this occasion. They have the great and solemn duty to dis- 
charge of forgetting, if possible, that they are Americans, 
and of thinking, for the moment, that they have been trans- 
formed into subjects of other lands ; of forgetting that there is 
a North or a South, an East or a West, and of remembering 
only that these twelve men are in peril of their lives, and that 
this Jury is to judge whether they have feloniously and pirati- 
cally, with a criminal intent, done the act for which it is 
claimed their lives are forfeited to their country. I wish to 
dispel from the minds of the Jury, at the outset of this case, an 
illusion which has been attempted to be produced on them, 
with no improper motive, I am sure, by the counsel who 
opened the case on the part of the Government — that this trial 
is a mere matter of form. I tell you, gentlemen, that it is a 
trial involving the lives of twelve men, and this Jury are bound 
to assume, from the beginning to the end of the case, that if 
their verdict shall pronounce these men guilty of the crime of 
piracy ,^ with which they are charged, every one of them will as 



OF THE SCHOONER SAVANNAH. Tl 

surely terminate his life on the scaffold, as the sun will rise on 
the morrow of the clay on which the verdict shall be pro- 
nounced. We have nothing to do with what tlie Government 
in its justice and clemency may see fit to do after that verdict 
has been pronounced. We are bound to believe that the Gov- 
ernment does not put these men upon their trial with an inten- 
tion to make the verdict, if it shall be one of guilty, a mere 
idle mockery, I, for one, while I love my country, and wish 
its Government to enjoy the respect of the whole world, would 
not be willing to believe that it would perform a solemn farce 
of that kind ; and, gentlemen, as you value the peace and 
repose of your own consciences, you will, in the progress of 
this trial, from its beginning to its end, look on it in this light, 
and in none other, 

IS^ow, gentlemen, what is the crime of piracy, as we have 
all been taught to understand it from our cradle ? My learned 
friend has given one definition of what a pirate is, by saying 
that he is the enemy of the human race. And how does his 
crime commence ? Is it blazoned, before he starts on his wicked 
career, in the full light of the sun, or is it hatched in secret? 
Does it commence openly and frankly, with the eyes of his 
fellow-citizens looking on from the time that the design is con- 
ceived, or does it originate in the dark forecastle of some vessel 
on the seas, manned by wicked men, to whom murder and rob- 
bery have been familiar from their earliest days, and who 
usually commence by murdering the crew of the vessel, the 
safety of which has been partly entrusted to them? And when 
the first deed of wickedness has been done which makes pirates 
and outcasts of the men who perpetrated it, what is their career 
from that moment to the time when they end their lives, prob- 
ably on the scaffold ? Is it not one of utter disregard to the 
laws of God and man, and to those of humanity? Is it not a 
succession of deeds of cruelty, of rapine, of pillage, of wanton 
destruction? Who ever heard of pirates who, in the first 
place, commenced the execution of their design by public 
placards posted in the streets of a populous city like Charles- 
ton, approved of by their fellow-citizens of a great and popu- 
lous city, and not only by them, but by the people of ten great 
and populous States ? And who ever heard of pirates who, 
coming upon a vessel that was within the limits of the commis- 
sion under which they were acting, took her as a prize, with 
an apology to her Captain for the necessity of depriving him of 
his property, and claiming to act under the authority of ten 
great and populous States, and under that authority alone ? 
And who ever heard of pirates doing what has been testitied to 
in this case by the witnesses for the Government, — taking one 
ship because she belonged to the enemies of the Confederate 



Y2 TRIAL OF THE OFFICERS AND CREW 

States, to which they sincerely believed they owed the duty of 
allegiance, and passing immediately under the stern of another 
vessel, because they knew by her build and appearance that 
she was a British vessel, and not an enemy of their country, as 
they believed ? 

But, gentlemen, the difficulties with which the prosecution 
had to contend, in making out this case, are too great to be lost 
sight of; and the Jury must certainly have seen how utterly 
preposterous it is to characterize as piracy acts of this kind. 
Who ever heard of a pirate who, having seized a prize, put a 
prize-crew on board of her, sent her home to his native port 
— a great and civilized city, in a great and populous country — 
to be submitted to the adjudication of the Courts in that city, 
and to be disposed of as the authorities of his home should 
direct ? I beg to call your attention to the facts that have been 
brought out on the testimony for the prosecution itself — that, in 
regard to this vessel, instead of her crew having been murdered 
— instead of helpless women and children having been sent to 
a watery grave, after having suffered, perhaps, still greater 
indignities — that not a hair of the head of any one was touched, 
— that not a man suffered a wound or an indignity of any 
kind — that they were sent, as prisoners of war, into the neigh- 
boring port of Georgetown, where, in due time, by decree of a 
court, the vessel was condemned and sold — and the prisoners, 
having been kept in confinement some time as prisoners of 
war, were released, and have been enabled to come into Court 
and testify before you. 

Comparing this case, gentlemen, with the cases which are 
constantly occurring in the land, what earthly motive can you 
conceive, on the part of the Government, for having made the 
distinction between these poor prisoners, taken on board of this 
paltry little vessel of 40 or 50 tons, and the great bands in 
arms in all parts of the country ? Look what occurred a little 
while ago in Western Virginia, where a large foi'ce of men, in 
open arms against the Government, who had been carrying 
ravage and destruction through that populous country, and over 
all parts of it, were captured as prisoners. Were any of those 
men sent before a court, to be tried for their lives? Did not 
the commanding ofiicer of the forces there, acting under the 
authorization, and with the approval, of the Government, re- 
lease every one of those men, on his parole of honor not to bear 
arms any more against the country ? And what earthly motive 
can be conceived for making the distinction which is attempted 
to be made between these men and those ? Shall it be said, to 
tlie disgrace of our country — for it would be a disgi'ace if it 
could be justly said — that we had not courage and confidence 
enough in our own resources to believe that we would be able 



OF THE SCHOONER SAVANNAH. 73 

to cope with these adversaries in the field in fair and equal 
warfare ? Gentlemen, I think it would be .a cowardly act, 
which would redound to the lasting disgrace of the country, to 
have it said, one century or two centuries hence, that, in this 
great time of our country's troubles and trials, eighteen States 
of this Confederacy, infinitely the most populous, infinitely the 
most wealthy, abounding in resources, with a powerful army 
and navy, were obliged to resort to the halter or the ax for 
the purpose of intimidating those who were in arms against 
them, I do not think that any one of this Jury would be wil- 
ling to have such a thin^ said. 

JNow, gentlemen, with regard to the conduct of these men, 
an impression has been attempted to be created on your minds 
by one circumstance, and that is, that at the time of the cap- 
ture of the Joseph by the Savannah the American flag was 
hoisted on board the Savannah, and that the Joseph came 
down to her, and permitted her to approach from the false 
security and confidence occasioned by that circumstance. The 
time has now arrived to dispel the illusion from your mind that 
there was anything reprehensible in that, or anything in it not 
warranted by the strictest rules of honor and of naval warfare. 
Why, gentlemen, I could not give you a more complete par- 
allel on that subject than one which occurred at the time of 
the chase of the Constitution by a British fieet of men-of-war, 
and the escape of the Constitution from which fleet at that 
time reflected such lasting honor on our country and her 
naval history. You will all recollect that the Constitution, 
near the coast of our country, fell in with and was chased for 
several days by a large British fleet. Let me read to you one 
short sentence, showing what occurred at that time. I read 
from Cooper's Naval History : 

" The scene, on the morning of this day, was very beautiful, and of great 
interest to the lovers of nautical exhibitions. The weather was mild and 
lovely, the sea smooth as a pond, and there was quite wind enough to remove 
the necessity of any of the extraordinary means of getting ahead that had 
been so freely used during the previous eight and forty hours. All the Eng- 
lish vessels had got on the same tack with the Constitution again, and the 
five frigates were clouds of canvas, from their trucks to the water. Includ- 
ing the American ship, eleven sail were in sight ; and shortly after a twelfth 
appeared to windward ; that was soon ascertained to be an American mer- 
chantman. But the enemy were too intent on the Constitution to regard 
anything else, and though it would have been easy to capture the ships to 
leeward, no attention appears to have been paid to them. With a view, 
howecer, to deeeioe the ship to windward, they hoisted American colors, when 
the Constitution set an English ensign, 'by way of warning the stranger to 
keep aloof. 

After that, 1 hope we will hear no more about the Savan- 
nah having hoisted the American flag fur the purpose of induc- 
ing the Joseph to approach her. 



74 TRIAL OF THE OFFICERS AND CREW 

It now becomes my duty, gentlemen, to call yonr attention^ 
very briefly, to the grounds on wliicli the prosecution rests this 
case. There are two grounds, and I will notice them in their 
order. The first is, that this was robbery. Well, I have had 
occasion, already, in what I have said to you, to call your at- 
tention to some of the points that distinguish this case from 
robbery. I say it was not robbery, because, in the first place, 
one of the requisites of robbery on the seas, which is called 
piracy, is, that it shall be done with a piratical and felonious 
intent. The intent is what gives character to the crime ; and 
the point that we shall make on that part of the case is this, 
that if these men, in the capture of the Joseph (leaving out 
of view for the present the circumstance of their having 
acted under a commission from the Confederate States), acted 
under the belief that they had a right to take her, there was 
not the piratical and felonious intent, and the crime of robbery 
was not committed. I will very briefly call your attention to 
a few authorities on that subject. One of the most standard 
English works, and the most universally referred to on this 
subject of robberies, is Holers Pleas of the Crown. Hale says : 

" As it is cepit and asportavit so it must be felonice or animo furandi, 
otherwise it is not felony, for it is the mind that makes the taking of another's 
goods to be a felony, or a bare trespass only ; but because the intention and 
mind are secret, they must be judged by the circumstances of the fact, and 
though these circumstances are various and may sometimes deceive, yet 
regularly and ordinarily these circumstances following direct in this case. 

" If A, thinking he hath a title to the horse of i?, seizeth it as his own, or 
supposing that B holds of him, distrains the horse of B without cause, this 
regularly makes it no felony, but a trespass, because there is a pretence of 
title ; but yet this may be but a trick to color a felony, and the ordinary dis- 
covery of a felonious intent is, if the party does it secretly, or being charged 
with the goods, denies jt. ***** * 

" But in cases of larceny, the variety of circumstances is so great, and the 
complications thereof so weighty, that it is impossible to prescribe all the cir- 
cumstances evidencing a felonious intent ; on the contrary, the same must be 
left to the due and attentive consideration of the Judge and Jury, wherein the 
best rule is, in duhiis, rather to incline to acquittal than conviction." 

The next authority on that subject to which I will refer you 
is 2d EasCs Pleas of the Crown, p. 649. The passage is : 

"And here it may be proper to remark, that in any case, if there be any 
fair pi'etence of property or right in the prisoner, or if it he brought into doubt 
at all, the court will direct an acquittal ; for it is not ft that such disputes 
should he settled in a manner to bring men's lives into jeopardy. 

"The owner of ground takes a horse damage feasant, or a lord seizes it as 
an estray, though perhaps without title ; yet these circumstances explain the 
intent, and show that it was not felonious, unless some act be done which 
manifests the contrary: as giving the horse new marks to disguise him, or 
altering the old ones ; for these are presumptive circumstances of a thievish 
intent." 



OF THE SCHOONER SAVANNAH. 75 

I call attention also to the case of Rex vs. Ilall^ Sd Carring- 
ton (& Payne, 409, which was a case before one of the Barons 
of the Exchequer in England. It was an indictment for rob- 
bing John Green, a gamekeeper of Lord Dncie, of three hare- 
wires and a pheasant. It appeared that the prisoner had set 
three hare-wires in a field belonging to Lord Dncie, in one of 
which this pheasant was caught ; and that Green, the game- 
keeper, seeing this, took np the wires and pheasant, and put 
them into his pocket ; and it further appeared that the pris- 
oner, soon after this, came np and said, " Have you got my 
wires ?" The gamekeeper replied that he had, and a pheasant 
that was caught in one of them. The prisoner asked the game- 
keeper to giv^e the pheasant and wires up to him, which the 
gamekeeper refused ; whereupon the prisoner lifted up a large 
stick, and threatened to beat the gamekeeper's brains out if 
he did not give them up. The gamekeeper, fearing violence,, 
did so. 

Maclean, for the prosecution, contended — 

" That, by law, the prisoner could have no property in either the wires or 
the pheasant ; and as the gamekeeper had seized them for the use of the Lord 
of the Manor, under the statute 5 Ann, c. 14, s. 4, it was a robbery to take 
them from him by violence." 

Vaughan, B., said : 

" I shall leave it to the Jury to say whether the prisoner acted on an im- 
pression that the wires and pheasant were his property, for, however he 
might be liable to penalties for having them in his possession, yet, if the Jury 
think that he took them under a 'bonafide impression that he was only getting 
back the possession of his own property, there is no animus furandi, and I 
am of opinion that the prosecution must fail, 

" Verdict— Not guilty." 

Without detaining the Court and Jury to read other cases, 
I will simply give your honors a reference to them. I refer 
to the Ki7ig vs. Knight, cited in '2d Easf s Pleas of the Crown, 
p. 510, decided by Justices Gould and Buller ', the case of the 
Queen vs. Boden, \st Carrington and Kirwan, p. 395 ; and 
for the purpose of showing that this is the same rule which has 
been applied by the Courts of the United States, in these very 
cases of piracy, I need do nothing more than read a few lines 
from a case cited by the counsel for the prosecution in opening 
the case of the United States vs. Tidly, \st Gallisovus Circuit 
Court Reports, 247, where Justices Story and Davis say, that 
to constitute the offence of piracy, within the Act of 30th April^. 
1790, by " piratically and feloniously" running away with a 
vessel, " the act must have been done with the wrongful and 
fraudulent intent thereby to convert the same to the taker's 
own use, and to make the same his own property, against the 
will of the owner. The intent must be animo jurandiP 



76 TRIAL OF THE OFFICERS AND CREW 

Now, gentlemen, 1 think that when you come to consider 
this case ia your jury-box, whatever other difficulties you may 
have, you will very speedily come to the conclusion that the 
taking of the Joseph was with no intent of stealing on the part 
of these prisoners. 

But, gentlemen, there is another requisite to the crime of 
robbery, which, I contend, and shall respectfully attempt to 
show to you, is absent from this case. I mean, it must be by 
violence, or putting him in fear that the property is taken from 
the owner, and that the crime of robbery is committed. I beg 
to refer the Court to the definition of robbery in 1^^ Black- 
stone's Commeoitaries, p. 242, and 1^^ Hawkins'' Pleas of the 
Crown, p. 233, where robbery at common law is defined to be 
" open and violent lojrceny, the rapina of the civil law, the 
felonious and forcible taking from the person of another of 
goods or money to any value by violence, or putting him in 
fear." 

Now, gentlemen, 1 say there was nothing of that kind in 
this case. What are the circumstances as testified to by the 
witnesses for the prosecution ? The circumstances are, that the 
Joseph and the Savannah, having approached within hailing 
distance, the Captain of the Savannah hailed the Captain of 
the Joseph, standing on the deck of his own vessel, and re- 
quested him to come on board and bring his papers. The 
answer of the Captain of the Joseph was an inquiry by what 
authority that direction was given ; and the Caj^tain of the 
Savannah replied, " by the authority of the Confederate States." 
Whereupon the Captain of the Joseph, in his own boat, with 
two of his crew, went alongside the Savannah, was helped 
over the side by the Captain of the Savannah, and was informed 
by him that he was under the disagreeable necessity of taking 
his vessel and taking them prisoners ; and without the slightest 
force or violence being used by the Captain, or by a single 
member of the crew of the Savannah — without a gun being 
fired, or even loaded, so far as anything appears — the Captain 
of the Joseph voluntarily submitted, yielded up his vessel, and 
there was not the slightest violence or putting any body in fear. 

Tlierefore, gentlemen, I say, that so far as the crime charged 
here is the crime of robber}^, there is no evidence in the case 
under which, on either of these grounds, by reason of the se- 
crecy of the act, or the violence or putting in fear, or the show- 
ing a felonious intent, by the evidence for the prosecution, 
these prisoners can be convicted under the indictment before 
you. To show that the definition of robbery at common law 
is the one that applies to these statutes of the United States, I 
beg to refer your honors to cases in the Supreme Court of the 
United States. I refer to the case of the United States vs. 



OF THE SCHOONER SAVANNAH. TT 

.Palmer, 3 Wheaton, 610 ; the United States vs. Wood, dd Wash- 
ington, 440 ; and the United States vs. Wilson, 1 Baldwin, 
i?. 78. 

But, gentlemen, there is another set of counts in this indict- 
ment on which, probably, as to those who are citizens, a con- 
viction will be pressed for by counsel on the part of the Gov- 
ernment. That is a set of counts to which I am about to call 
your attention in reference to the acts under which they were 
framed. You will recollect this, gentlemen, that under the 
coimts charging the offence of robbery, the majority of these 
prisoners must be convicted, or none of them can be convicted 
at all, for reasons which I will immediately give you. The 
only statute under which it is claimed on the part of the prose- 
cution that a conviction can be had, if not for robbery on the 
high seas, imperatively requires that the prisoners to be con- 
victed must be citizens of the United States. There are twelve 
prisoners here, and by the statement of the last witness pro- 
duced on the part of the prosecution, only four of them appear 
to be citizens of the United States, or ever to have been citi- 
zens of the United States. The others were all born in different 
countries in Europe and Asia, and had never been naturalized; 
and the Court, wtienever this case comes before you, so far as 
that point is concerned, will give you the evidence on the sub- 
ject, by which you will see exactly which of these prisoners 
had ever been citizens of the United States, and which of them 
had not been. I therefore proceed to examine as to what the 
statute is, and what the requisites are fur a conviction of those 
who were citizens of the United States at any time. 1 will 
read to you the section of the statute to which 1 have reference. 
It is the 9th section of the Act of 1790. It reads, '_' That if any 
citizen shall commit any piracy or robbery aforesaid, or any act 
of hostility against the United States, or any citizen thereof, 
upon the high seas, under color of any commission from any 
foreign Prince or State, or on pretence of authority from any 
person, such offender shall, notwithstanding the pretence of 
any such authority, be deemed, adjudged, and taken to be a 
pirate, felon, and robber, and, on being thereof convicted, shall 
suffer death." 

Now, it will be interesting and necessary to understand the 
circumstances under which that statute was passed, and the 
application which it was intended to have. I will briefly read 
to you the explanation of that subject, which your honors will 
find in Hawkins'' Pleas of the Crown, 1st Vol., p. 268. Haw- 
kins says : 

" It being also doubted by many eminent civilians whether, during the 
Revolution, the persons who had captured English vessels by virtue of com- 
missions granted by James 2nd, at his court at St. Germain, after his abdica- 



"78 TRIAL OF THE OFFICERS AND CREW 

tion of the throne of England, could be deemed pirates, the grantor still hav- 
ing, as it was contended, the right of war in him ; it is enacted by 11 and 12 
Will. III., chap. 7, sec. 8, * That if any of his Majesty's natural born subjects 
or denizens of this Kingdom shall commit any piracy or robbery, or any act 
of hostility against others of his Majesty's subjects upon the sea, under color 
of any commission from any foreign Prince or State, or pretence of authority 
from any person whatsoever, such offender or offenders, and everj^ of them, 
shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and 
they and every of them, being duly convicted thereof according to this Act or 
the aforesaid statute of King Henry the Eighth, shall have and suffer such 
pains of death, loss of land and chattels, as pirates, felons, and robbers upon 
the sea ought to have and suffer.' " 

Your honors will find that further referred to in the case of 
the United States vs. Jones, Zd Wash. Cir. Court Reps. p. 219, 
in these terms : 

"The 9th sec. of this law (the Act of 1790) is in fact copied from the 
statute of the 11th and 12th Wm. 3d, ch. 7, the history of which statute is 
explained by Hawkins. It was aimed at Commissions granted to Cruisers 
by James II., after his abdication, which, by many, were considered as con- 
ferring a legal authority to cruise, so as to protect those acting under them 
against a charge of piracy. Still, we admit that unless some other reason 
can be assigned for the introduction of a similar provision in our law, the 
argument which has been founded on it would deserve serious considera- 
tion. We do not think it diflBcult to assign a very satisfactory reason for 
the adoption of this section without viewing it in the light of a legislative 
construction of the 8th sec, or of the general law. 

" If a citizen of the United States should commit acts of depredation 
against any of the citizens of the United States, it might at least have been 
a, question whether he could be guilty of piracy if he acted under a foreign 
commission and within the scope of his authority. He might say that he 
acted under a commission ; and not having transgressed the authority derived 
under it, he could not be charged criminally. But the 9th sec. declares that 
this shall be no plea, because the authority under which he acted is not 
allowed to be legitimate- It declares to the person contemplated by this 
section, that in cases where a commission from his own Government would 
protect him from the charge of piracy, that is, where he acted within the 
scope of it or even where he acted fairly but under a mistake in transgress- 
ing it, yet that a foreign commission should afford him no protection, even 
although he had not exceeded the authority which it professed to give him. 
But it by no means follows from this that a citizen committing depredations 
upon foreigners or citizens, not authorized by the commission granted by 
his own Government, and with a felonious intention, should be protected by 
that commission against a charge of piracy. Another object of this section 
appears to have been to declare that acts of hostility committed by a citizen 
against the United States upon the high seas, under pretence of a commission 
■issued by a foreign Government, though they might amo^int to treason, were 
nevertheless piracy and to he tried as such." 

Your honors will find another very interesting history in 
reference to this statute in PhilliTnoris International Law, 
Ist vol., sec. 398. Phillimore says : 

'Soon after the abdication of James II., an international question of very 
great importance arose, namely, what character should be ascribed to priva- 
teers commissioned by the monarch, who had abdicated, to make war against 



OF THE SCHOONEK SAVANNAH. 79 

the adherents of William III., or rather against the English, while under his 
rule. The question, in fact, involved a discussion of the general principle, 
whether a deposed sovereign, claiming to be sovereign de jure, might law- 
fully commission privateers against the subjects and adherents of the sover- 
eign de facto on the throne; or whether such privateers were not to be con- 
sidered as pirates, inasmuch as they were sailing aniino furandi et deprae- 
dandi, without any national character. The question, it should be observed, 
did not arise in its full breadth and importance until James II. had been 
expelled from Ireland as well as England, until, in fact, he was a sovereign, 
claiming to he such de jure, but confessedly without territory. It appears 
that James, after he was in this condition, continued to issue letters of 
marque to his followers. The Privy Council of William III. desired to hear 
civilians upon the point of the piratical character of such privateers. The 
arguments on both sides are contained in a curious and rather rare pamphlet, 
published by one of the counsel (Dr. Tindal) for King William, in the years 
1693-4. The principal arguments for the piratical character of the priva- 
teers appear to have been — 

" That they who acted under such commission may be dealt with as if 
they had acted under their own authority or the authority of any private 
person, and therefore might be treated as pirates. That if such a titular 
Prince might grant commissions to seize the ships and goods of all or most 
trading nations, he might derive a considerable revenue as a chief of such 
fi'eebooters, and that it would be madness in nations not to use the utmost 
rigor of the law against such vessels. 

" That the reason of the thing which pronounced that robbers and pirates, 
when they formed themselves into a civil society, became just enemies, pro- 
nounced also that a king without territory, without power of protecting 
the innocent or punishing the guilty, or in any way of administering justice, 
dwindled into a pirate if he issued commissions to seize the goods and ships 
of nations ; and that they who took commissions from him must be held by 
legal inference to have associated sceleris causa, and could not be considered 
as members of a civil society." 

I will not occupy the time of the Court and Jury by recapitu- 
lating the rest of the arguments which were urged with very 
great ability by the learned and distinguished civilians arrayed 
against each other in that interesting debate. But the points 
•which arise, and which the Court will have, in due time, to in- 
struct you upon, we respectfully claim and insist are these : 
That this English statute, after which our own statute was pre- 
cisely copied, was intended only to apply to the case of pirates 
cruising under a commission pretended to have been given, 
in the first place, by a Prince deposed, abdicated, not having a 
foot of territory yielding liim obedience in any corner of the 
world ; and, in the next place, that it was intended to be aimed 
against those cruising under a commission i sued under the 
pretence of authority from a foreigner, and not from the authori- 
ties over them de jure or de facto, or from any authorities of 
the land in which they lived, and where the real object was 
depredation ; because, where it was issued by a monarch with- 
out territory — by a foreigner, having no rule, and no country 
in subjection to him — there could be no prize-court, and none of 
the ordinary machinery for disposing of prizes captured, accord- 



80 TRIAL OF THE OFFICEES AJSTD CEEW 

ing to the rules of international law ; and, lastly, it was intended 
to apply to the case of a citizen, taking a privateer's commission 
from a foreign Government as a pretence to enable him to 
cruise against the commerce of his own countrymen. But it 
was never intended to apply to a case of this kind, where tlie 
commission was issued by the authorities of the land in which 
the parties receiving it live, exercising sway and dominion over 
them, whether de jure or de facto, 

Now, gentlemen, so far I have thought it necessary to go in 
explanation of what the statutes were, of the circumstances 
bearing on them, and of the requisites which the prosecution 
had to make out, in order to ask a conviction at your hands. I 
come now, ft' r the purpose of tliis opening, to lay before you 
what we shall rely upon in our defence. The tirst defence, as 
has already appeared to you from the course of the examina- 
tion of the prosecution's witnesses, has reference to the question 
of the jurisdiction of this Court to hear and determine this con- 
troversy. The statute has been already read to you, on which 
that question of jurisdiction rests; but, for fear that you do not 
recollect it, I will beg once more to call your attention to it. 
The concluding paragraph of sec. 14 of the Act of 1825, 4th. 
vol. of the Statutes at Large, p. 118, is as follows: 

"And the trial of all offences which shall be committed on the high seas 
or elsewhere out of the limits of any State or District, shall be in the District 
where the offender is apprehended, or into which he may first be brought." 

Now, you observe that the language of the statute is im- 
perative — the reasons which led to its adoption were also im- 
perative and controlling. It is necessary that the law shall 
make provision for the place where a man shall be put on trial 
under an indictment against him ; and the law wisely provides 
that in cases of offences committed on the land, the trial shall 
only take place where the offence was committed. It was 
thought even necessary to provide for that by an amendment 
to the Constitution of the United States, in order that there 
might be no misunderstanding of, and no departure from, the 
rule. 

The Constitution, by one of its amendments, in the same 
paragraph which provides for the right of every accused to a 
speedy and impartial trial, provides also that that trial shall 
take place in the District, which District shall first have been 
ascertained by law ; and as I said to you, in cases of crimes com- 
mitted on the land, that District must be the District where 
the offence was committed, and no other. 

Now look at the state of things here, gentlemen. These 
men are all citizens or residents of the State of South Carolina, 
and have been so for years. This vessel was fitted out in South 
Carolina. The authority under which she professed to act was 



OF THE SCHOONER SAVANNAH. 81 

given there. Tlie evidence for the defence, if it could be got, 
must come from there. All the circumstances bearing on the 
transaction occurred in that section of the country, and not 
elsewhere, — occurred in a country which is now under the 
same Government and domination as Yirginia, because Virginia 
is included at present under the domination and Government of 
the Confederate States. 

"Well, with reference to offences committed at sea, the offi- 
cers capturing a prize have a right to bring it into any port, it 
is true, and the port where the prisoners are brought is, as we 
claim under the construction of the statute, the port where the 
trial is to take place ; the port where the prisoners are first 
brought, w^hether they are landed or not. On that question of 
jurisdiction the rule is this : The jurisdiction of the State ex- 
tends to the distance of a marine league from shore ; and if 
these prisoners were brought on this vessel within the distance 
of three miles from the shores of Yirginia, where the vessel 
anchored, as in port, having communication with the land, the 
jurisdiction of the Circuit Court of the Eastern District of Vir- 
ginia attached, and they could not, after that, be put on trial 
for that offence elsewhere. It is not necessary for me now to 
trouble the Jury with re-reading authorities which were read 
upon this subject yesterday. In a case which occurred some 
years ago, before Judge Story, the learned Judge had fallen 
into a misapprehension on a question which did not necessarily 
arise, because the facts to give rise to it did not occur in the 
case. An offence had been committed — an attempt to create 
a revolt on board of a vessel at sea. Those who had made the 
attempt had either repented of the design, or had not succeed- 
ed in it ; at all events, they had afterwards gone on to do their 
duty on the vessel, and had not been incarcerated on board the 
vessel at all. The vessel first got into a port in Connecticut, 
and finally got into a port in Massachusetts, and there, for the 
first time, those prisoners were arrested and put into confine- 
ment. Undoubtedly the Court in Massachusetts had jurisdic- 
tion in that case ; but Judge Story, speaking on a question which 
did not arise, appeared to treat the language of the statute as 
being alternative, giving the Government the right to select 
one of two places for the trial. That was corrected in a late 
case which came before the Court in Massachusetts, in the 
sameDistrictwdiere Judge Story had decided the previous case. 
Both Judge Sprague, of the District Court, and Judge Clifford, 
of the Circuit Court, held that in a case where prisoners had 
been captured as malefactors on the high seas, and had been 
confined on board a United States vessel, where the vessel had 
gone into Key West for a temporary purpose, to get water, 
without the prisoners ever having been landed, and where they 
6 



82 TKIAL OF THE OFFICERS AND CKEW 

went from tlieiice to Massachusetts, where the piisoners were, 
arrested by the civil authorities and imprisoned, that the Court 
of Massachusetts had no jurisdiction whatever. Under the 
instructions of the Court, the Grand Jury refused to find an 
indictment, and a warrant of removal was granted to remove 
the prisoners for trial iu the Court at Key West, — the Court 
of Massachusetts holding that that was the only place where 
they could be tried for the offence, because the vessel having 
them in custody as prisoners had touched there to get water 
on her voyage. We have not even the information in that 
case as to whether the vessel went within three miles of the 
shore; it was enough that she had communicated with Key 
West, and that the prisoners might have been Janded there; 
but it was held that the Government had not a right to elect 
the place of trial of the prisoners ; and it is important, particu- 
larly in cases of this kind, that no one shall have the right to 
elect a place of trial. I say that, not with the slightest inten- 
tion of imputing any unfair motives to the Government, to the 
ofiicers of the Navy, or any one else. It is a great deal better 
that where men are to be put on trial for tlieir lives, they should 
have the benefit of the chapter of accidents. 

If it would have been any better for these prisoners to have 
had a Jury to try them in Virginia, they were entitled to the 
benefit of that. In saying so, I mean no reflection on any Jury 
in New York. I have no doubt you will try this case as hon- 
estly, as fairly, and as impartially as any Jury in Virginia could 
try it. But at the same time we all know that if this right of 
election can be resorted to on the part of the United States, 
men might suffer, not from any wrong intention, but from the 
natural and inevitable and often unconscious tendency of those 
who are to prosecute, to select the place of prosecution most 
convenient for themselves. 

We shall therefore claim before you, gentlemen, following 
the rule laid down in Massachusetts by Judge Clifford and 
Judge Sprague, that this vessel, having been within a marine 
league of tbe shore of Virginia, was within the jurisdiction of 
the District Court of Virginia, and that that was the only place 
where they could be tried. Suppose, as was well suggested to 
me by one of my associates, that on the Minnesota, l^ing where 
she did, or on the Harriet Lane, Ijing where she did in Hamp- 
ton Roads, a murder had been committed: could it be contended 
by any one that the United States Court in Virginia would not 
have had jurisdiction, and tiie only jurisdiction over the case? 

Now, gentlemen, that is all which, on the opening of this 
case, I am going to say on the subject of jurisdiction. 

Our next defence will be, that the commission in this case 
affords adequate protection to these prisoners ; and we will put 



OF THE SCHOONER SAVANNAH. 83 

that before you in several points of view. It will undoubtedly 
be read to yon in evidence. It was one of the documents found 
on board this vessel. 

Mr. Evarts : It is not in evidence ; and how can counsel 
open to the Jury upon a commission which is not in evidence ? 

Judge Nelson : Counsel can refer to it as part of his open- 
ing, 

Mr. Larocque: Now, gentlemen, you will recollect that 
the counsel for the prosecution, in framing this indictment, has 
treated this in the way in which we claim he was bound to 
treat it; that is to say, that the 9th section of the Act of 1790 
was intended to refer exclusively to offences claimed to have 
been committed under a commission ; throwing on the prose- 
cution the necessity of setting forth the commission or the pre- 
tence of authority. Having set it forth, the prosecution is 
bound by the manner in which it is described in the indict- 
ment; and if it is described as something which it is not, the 
prisoners must have the benefit of that mis-description. 

Now, in framing this indictment, the counsel for the prose- 
cution has set forth that the prisoners claimed to act under a 
commission issued by one Jefferson Davis. That is to say, he 
has attempted to ground his claim to a conviction on that sec- 
tion of the statute. You will recollect that the statute reads, 
" under pretence of any commission granted by any foreign 
Prince or State" (which the Courts of the United States have 
held, to mean a foreign State), "or under pretence of authority 
from any person." And it was necessary, in order to ground 
an indictment on that section of the statute, to bring this case 
within the exact letter or words of one or the other clause of 
that section of this statute. It would not do for them to claim 
that this commission was issued by a foreign Prince or foreign 
State, because, if by a foreign Prince or foreign State, there 
would be no doubt or question that all of these parties were 
citizens of that foreign State or residents there, and were not 
citizens of the United States, Of course, if this were a foreign 
State, they were foreign citizens, and not citizens of the United 
States. 

What is this commission ? As we shall lay it before you, 
it reads in this way : 

" Jefferson Davis, 

" President of the Confederate States of America, 
" To all who shall see these Presents, Greeting : 

" Know ye, That by virtue of the power vested in me by law, I have 
commissioned, and do hereby commission, have authorized, and do hereby 
authorize, the schooner or vessel called the 'Savannah' (more particularly 
described in the schedule hereunto annexed), whereof T. Harrison Baker is 
commander, to act as a private armed vessel in the service of the Confederate 
States, on the high seas, against the United States of America, their ^ships. 



84 TRIAL OF THE OFFICERS AND CREW 

vessels, goods, and effects, and those of their citizens, during the pendency 
of the war now existing between the said Confederate States and the said 
United States. 

" This commission to continue in force until revoked by the President of 
>the Confederate States for the time being. 

" Given under my hand and the seal of the Confederate States, 
[h. s.] at Montgomery, this eighteenth day of May, A. D. 1861. 

" (Signed) JEFFERSON DAVIS. 
" By the President. 

"R. TOOMBS, 

'■'■Secretary of State, 

"schedule of description of the vessel. 

*' Name — Schooner ' Savannah.' 

" Tonnage— Fifty-three ||th tons. 

" Ai mament — One large pivot gun and small arms. 

" No. of Crew— Thirty." 

That is the document, bearing the seal of ten States, signed 
by Jefferson Davis as President — signed by the Secretary of 
State for those ten States, which the learned counsel who 
framed the indictment has undertaken to call " a pretence of 
authority from one Jefferson Davis." The counsel was forced 
to frame his indictment in that way ; for if he had alleged in 
the indictment that it was by pretence of authority from the 
Confederate States — to wit, South Carolina, Georgia, &c., 
naming States which this Government, for the purpose of 
bringing this prosecution at all, must claim to be in the Union 
— it would be clearly outside of the provision of the statute, 
and could never get before a Jury, because it would have been 
dismissed on application to the Court beforehand. But the 
learned counsel has sought, by stating an argumentative con- 
clusion of law in his indictment, according to his understanding 
of it, to bring within the statute a case which the statute was 
not meant to meet — an entirely different and distinct case. I 
submit to you, that that cannot be done, — that the commission 
on its face does not purport to be a commission granted by any 
person. It purports to be, and, if anything, it is, a commission 
granted by au1:hority of the States that are joined together 
under the name of Confederate States ; and, gentlemen, as I 
said, we shall claim before you that this commission is a pro- 
tection to these parties, against the charge of piracy, upon 
various distinct grounds. 

In the first place, we shall claim before you that the Gov- 
ernment, called the Government of the Confederate States 
(whether you call it a Government dejure or a Government de 
facto,, or whatever name under the nomenclature of nations 
you choose to give it), is the present existing Government of 
those States, exercising dominion over them, without any other 



OF THE SCHOONER SAVANNAH. 85 

Government having an officer or court, or any insignia of Gov- 
ernment within tliem. 

This is a point which, at a future stage of the case, my 
learned associate, who is much better able to do so than I am, 
will have occasion to dwell upon. I wish, however, to call 
yonr attention to the rules as they have been laid down ; and 
first, I would desire to refer you, and also to call the attention 
of the Court, to what is said by Yattel, — who, as you all prob- 
ably know, is one of the most celebrated authors upon inter- 
national rights, and international law, and who is received as 
authority upon that subject in every Court in Europe and 
America. I refer to Yattel, book 1, chap. 17, sees. 201 and 
202, where he says : 

" Sec. 201. "When a city or province is threatened, or actually attacked, it 
must not, for the sake of escaping a danger, separate itself, or abandon its natu- 
ral Prince, even when the State or the Prince is unable to give it immediate and 
effectual assistance. Its duty, its political engagements, oblige it to make 
the greatest efforts in order to maintain itself in its present state. If it is 
overcome by force, necessity, that irresistible law, frees it from its former en- 
gagements, and gives it a right to treat with the conqueror, in order to obtain, 
the best terms possible. If it must either submit to him or perish, who can 
doubt but it may, and even ought to prefer the former alternative ? Modern 
usage is conformable to this decision, — a city submits to the enemy, when it 
cannot expect safety from vigorous resistance. It takes an oath of fidelity 
to him, and its sovereign lays the blame on fortune alone." 

" Sec. 202. The State is obhged to protect and defend all its members ; and 
the Prince owes the same assistance to his subjects. If, therefore, the State 
or the Prince refuses or neglects to succor a body of people who are exposed 
to imminent danger, the latter, being thus abandoned, become perfectly free 
to provide for their own safety and preservation in whatever manner they find 
most convenient, without paying the least regard to those who, by abandon- 
ing them, have been the first to fail in their duty. The Canton of Zug, being 
attacked by the Swiss in 1352, sent for succor to the Duke of Austria, its- 
sovereign ; but that Prince, being engaged in discourse concerning his hawks 
at the time when the deputies appeared before him, would scarcely conde- 
scend to hear them. Thus abandoned, the people of Zug entered into the 
Helvetic Confederacy. The city of Zurich had been in the same situation 
the year before. Being attacked by a band of rebellious citizens, who were 
supported by the neighboring nobility, and the House of Austria, it made 
application to the head of the Empire ; but Charles IV., who was then Em- 
peror, declared to its deputies that he could not defend it, upon which Zurich 
secured its safety by an alliance with the Swiss. The same reason has au- 
thorized the Swiss in general to separate themselves entirely from the Empire 
which never protected them in an}'' emergency. They had not denied its 
authority for a long time before their independence was acknowledged by the 
Emperor, and the whole Germanic Body, at the treaty of Westphalia." 

I also refer to the case of the United States v. Hayward, 2 
Gallison, 485, which was a writ of error to the District (>ourt 
of Massachusetts, in a case of alleged breach of the revenue 
laws. It appears that Castine (in Maine) was taken possession 



86 TRIAL OF THE OFFICERS AND CREW 

of by the British troops on the 1st of September, 1814, and 
was held in their possession until after the Treaty of Peace. 
Judge Story says : 

"The second objection is, that the Court directed the Jury that Castine 
was, under the circumstance, a foreign port. By 'foreign port,' as the terms 
are here used, may be understood a port within the dominions of a foreign 
sovereign, and without tlie dominions of the United States. The port of 
Castine is the port of entry for the District of Penobscot, and is withni the 
acknowledged territory of the United States. But, at the time referred to in 
the bill of exceptions, it had been captured, and was in the open and exclusive 
possession of the enemy. By the conquest and occupaLion oj Castine, that 
territory 2^(^s6d under the allegiance and sovereignty of the enemy. The 
sovereignty of the United States over the territory was, of course, suspended, 
and the laws of the United Slates could no longer he rightfully enforced, or 
ie obligatory upon the inhabitants, who remained and submitted to the con- 
querors^'' 

Now, gentlemen, I mnst trouble you, very briefly, with a 
reference to one or two other authorities on tliat subject. At 
page 188 of Foster's Crown Law that learned author says: 

^^ Sec 8. Protection and allegiance are reciprocal obligations, and conse- 
quently the allegiance due to the Crown must, as I said before, be paid to 
him who is in the full and actual exercise of the regal powers, and to none 
other. I have no occasion to meddle with the distinction between Kings de 
facto and Kings de jure, because the warmest advocates for that distinction, 
and for the principles upon which it hath been founded, admit that even a 
King de facto, in the full and sole possession of the Crown, is a King within 
the Statute of Treasons ; it is admitted, too, that the throne being full, any 
other person out of possession, but claiming title, is no King within the act, 
be his pretensions what they may. 

" These principles, I think, no lawyer hath ever yet denied. They are 
founded in reason, equity, and good policy." 

And again, at page 398, he continues : 

"His Lordship [Hale] admitted that a temporary allegiance was due to 
Henry VI. as being King de facto. If this be true, as it undoubtedly is, with 
what color of law could those who paid him that allegiance before the acces- 
sion of Edward IV. be considered as traitors ? For call it a temporary alle- 
giance, or by what other epithet of diminution you please, still it was due to 
him, while in full possession of the Crown, and consequently those who paid 
him that due allegiance could not, with any sort of propriety, be considered 
as traitors for doing so. 

"The 11th of Henry VII., though subsequent to these transactions, is 
full in point. For let it be remembered, that though the enacting part of 
this excellent law can respect only future cases, the preamble, which his 
Lordship doth not cite at large, is declaratory of the common law : and con- 
sequently will enable us to judge of the legality of past transactions. It 
reciteth to this effect, ' That the subjects of England are bound by the duty 
of their allegiance to serve their Prince and Sovereign Lord for the time being, 
in defence of him and his realm, against every rebellion, power, and might 
raised against him ; and that whatsoever may happen in the fortune of war 
against the mind and will of the Prince, as in this land, some time past it 
hath been seen, it is not reasonable, but against all laws, reason, and good 



OF THE SCIIOONEE SAVANNAH. 8T 

conscience, that such subjects attending upon such service should suffer for 
doing their true duty and service of allegiance.' It then enacteth, that no 
person attending upon the King for the time being in'his wars, shall for such 
service be convict or attaint of treason or other offence by Act of Parliament, 
or otherwise by any process of law." 

The antlior says then : 

" Here is a clear and full parliamentary declaration, that by the antient 
law and Constitution of England, founded on principles of reason, equity, and 
good conscience, the allegiance of the subject is due to the King for the time 
being, and to him alone. This putteth the duty of the subject upon a ra- 
tional, safe bottom. He knoweth that protection and allegiance are recip- 
rocal duties. He hopeth for protection from the Crown, and he payeth his 
allegiance to it in the person of him whom he seeth in full and peaceable 
possession of it. He entereth not into the question of title ; he hath neither 
leisure or abilities, nor is he at liberty to enter into that question. But he 
seeth the fountain, from whence the blessings of Government, liberty, peace, 
and plenty flow to him ; and there he payeth his allegiance. And tiiis excel- 
lent law hath secured him against all after reckonings on that account." 

And another author on that subject [Hawkins], in his 
Pleas of the Crown, Book I., chap. 17, sec. 11, says : 

"As to the third point, who is a King within this act? [26 Edw. 3, ch. 2.] 
It seems agreed that every King for the time being, in actual possession of 
the crown, is a King within the meaning of this statute. For there is a ne- 
cessity that the realm should have a King by whom and in whose name the 
laws shall be administered ; and the King in possession being the only per- 
son who either doth or can administer those laws, must be the only person 
who has a right to that obedience which is due to him who administers 
those laws ; and since by virtue thereof he secures to us the safety of our 
lives, liberties, and properties, and all other advantages of Government, he 
may justly claim returns of duty, allegiance, and subjection." 

"/Sec. 12. And this plainly appears by the prevaihng opinions in the 
reign of King Edward IV., in whose reign the distinction between a King 
de jure Bind de facto seems first to have begun ; and yet it was then laid down 
as a principle, and taken for granted in the arguments of Bagot's case, that a 
treason against Henry VI. while he was King, in compassing his death, was 
punishable after Edward IV. came to the Crown ; from which it follows that 
allegiance was held to be due to Henry VI. while he was King, because every 
indictment of treason must lay the offence contra Ugeantia debitum. 

^^ Sec. 13. It was also settled that all judicial acts done by Henry VI. 
while he was King, and also all pardons of felony and charters of denization 
granted by him, were valid ; but that a pardon made by Edward IV., before 
he was actually King, was void, even after he came to the Crown." 

"And by the 11th Henry VII., ch. 1, it is declared 'that all subjects are 
bound by their allegiance to serve their Prince and Sovereign Lord for the 
time being in his wars for the defence of him and his land against every 
rebellion, power, and might reared against him, &c., and that it is against 
all laws, reason, and good conscience that he should lose or forfeit any thing 
for so doing ;' and it is enacted ' that from thenceforth no person or persons 
that attend on the King for the time being, and do him true and faithful 
allegiance in his wars, within the realm or without, shall for the said deed 
-and true duty of allegiance le convict of any offence.' " 

^^ Sec. 15. From hence it clearly follows: First, that every King for the 



88 TKIAL OF THE OFFICERS AND CREW 

time being has a right to the people's allegiance, because they are bound' 
thereby to defend him in his wars, against every power whatsoever. 

^'' Sec. 16. Secondly, that one out of possession is so far from having any 
right to allegiance, by virtue of any other title which he may set up against 
the King in being, that we are bound by the duty of our allegiance to resist 
him." 

And these doctrines, if the Conrt please, have been re- 
cently acted upon and enforced by a learned Judge in the case 
of the United States vs. The General Parkhill, tried in Phila- 
delphia, and published in the newspapers, although not jet 
issued in the regular volumes of Reports. 

I need not tell you, gentlemen, that what is said there of 
the King, applies to any other form of Government equally well, 
whether it be a republican form of Government, or whatever it 
may be. These doctrines belong to this country as well as they 
belong to England. They belong to every country which has 
adopted the common law; and what would be due to a King in 
the actual possession of the Government in England, under our 
statutes and decisions, and under the rules adopted here, would 
be equally due to a President of the United States in any part 
of the country in which we live. 

I have only to call your attention, in that connection, in 
opening the defence, to what the condition of things was in the 
South at the time the acts charged in the indictment occurred. 
You will bear in mind there is no pretence in this case that any 
one of these prisoners had anything whatever to do with the 
initiation of this controversy, — with the overthrow or disappear- 
ance of the United States authority in those Confederate 
States, or with any act occurring anterior to the 2d of June, 
when this vessel, the Savannah, started upon her career. 
Nothing, so far, appears, and, in reality, nothing can be made 
to appear, to show any event, before that time, with which they 
were connected. 

The question, then, is. What was the state of things existing 
in Charleston, and in the Confederate States, at that time? In 
the course of the evidence, we will lay that before you, in the 
completest form it can be laid. AVe will show you, by the 
official documents, by the messages of the President, by procla- 
mations, and by the Acts of Congress themselves, that there was 
not an officer of the United States exercising jurisdiction in one 
of these Confederate States — not a Judge, or Marshal, or District 
Attorney, or any other officer by whom the Government had 
been previously administered on the part of the United States. 
Every one of them had resigned his office. This new Govern- 
ment had been iormed. It was the existing Government, which 
had replaced the United States in all these States, long anterior 
to the time that this vessel was fitted out and sailed from the 



OF THE SCHOONER SAVANNAH. 8^ 

port of Charleston ; and upon these questions, whether that was 
a de jure or de facto Government, we say it was the existing 
Government that was in authority over these men — tliat exer- 
cised the power of life and death over them, for it had Courts 
administering its decrees, as well as every other form and all 
the other insignia of power; and they were justified by over- 
ruling necessity, and by every other title, in yielding obedience 
to that Government, and in yielding their allegiance to it, as the 
cases I have read decide; and that duty enjoined upon their 
consciences to aid and support it by all means in their power 
from that time forward, until there was another Government 
over them. 

I say, therefore, gentlemen, that this was not a commission 
issued by a "person, to wit, one Jefferson Davis." I say it was 
a commission issued by several of the States of the Union, 
represented, if you please, by Jefferson Davis, and by authori- 
ty, in fact, from those States, and from the Government in force 
over them. And more than that, gentlemen, to bring the case 
still more clearly within the authorities I have read to you, and 
which you, no doubt, carry in your minds, we will show by the 
declarations of the Presidents of the United States — by the decla- 
ration of Mr. Buchanan, in December, 1860, and by the declara- 
tion of Mr. Lincoln, on tlie 4th of March, 1861 — that neither of 
them, at either of those dates, intended to interfere, or to at- 
tempt to interfere, by force, with this existing Government. 
They both, publicly and solemnly, in the presence of the United 
States, declared that they would not attempt, by any forcible 
invasion of those States, to overthrow the Government estab- 
lished over them ; — that there would be no " invasion," is the 
expression ; — that they would leave it to the sober second 
thought of the people of those States, by process of time, by 
maturer thought and better reflection, to return, probably, to 
their former position under the Government of the United 
States. And what were men to do, in that condition of things, 
in the State of South Carolina, in the State of Georgia, or in 
any one of those States, with not an officer of the United States 
to protect them — with not a Court of Justice to protect them — 
with Courts of Justice, on the contrary, organized by the new 
Government, and exercising dominion of life and death, and 
every other dominion that Government could exercise — but to 
yield their allegiance to it, and from thenceforth to support it, 
as honest men should do, who yield their allegiance to the 
Government ? 

As I said before, in respect to this question, even if this 
were a voluntary act on the part of the prisoners — if they were 
not controlled by necessity — if they had a state of things 
before them which authorized them to believe that their con- 



90 TRIAL OF THE OFFICERS AND CREW 

duct was right — that the States did nothing more than they had 
a right to do — they were justified in giving allegiance to the 
Government in existence. We have nothing to say as to the 
correctness of the political views or opinions of the prisoners 
whatever. The question is, What did these men helieve — what 
were they taught to believe, by your own expounders of the 
Constitntion — what did they conscientiously and sincerely be- 
lieve ? When they acted nnder this commission, did they believe 
that it was a legitimate authority, and bad they full color for 
the belief which they held ? 

And now, gentlemen, another point that we shall maintain 
before yon is, that under the Constitution of the United States, 
those States bad color of authority to grant this commission ; 
and that the executive government of the State had the juris- 
diction to decide, for all the citizens of the State, whether the 
emergency for taking hostile proceedings against the General 
Government had arrived, or not. And 1 know that, in saying 
that, I am speaking to this Jury an nupalatable doctrine, at the 
present day ; but it is a doctrine which is amply borne out by 
the cotemporaneous expositions of the Constitution, penned by 
its own framers, by the decisions of the Courts, and by authori- 
ties on which we are accustomed to rely for questions of that 
character. 

Now, the Constitution of the country is a complex one. 
There are two sovereigns in every State, exercising allegiance 
over the inhabitants of the State. The one sovereign is the 
United States of America, and the other sovereign is the State 
in which the citizen lives. And when I say that, 1 am speaking 
in the language of the Supreme Court of the United States 
itself, over and over repeated, as late as the 21st of Howard's 
Reports (but a few removes, I believe, from the last volume 
issued from that Court), without a dissenting voice. The theory 
of our Government is, that the States are sovereign and inde- 
pendent, and that, in coming into the Union, they have retained 
that sovereignty and independence for every purpose, and in 
every case, except those in which an express grant of power 
has been made to the Government of the United States, either 
in express words, or by necessary implication ; and the Courts 
have held, over and over again, that any act of the General 
Government of the United States, which transcends the express 
grant of power made by the Constitution, is absolutely void, to 
all intents and purposes whatever. 

And more than that, gentlemen, the citizen of a State cannot 
only commit treason against the United States, or other kindred 
political offences ; but he can, in like manner, commit treason 
against the State in which he lives, or other kindred political 
offences against its government. 



OF THE SCHOONER SAVANNAH. 91 

The Constitution of tlie United States defines treason to be, 
*' levying war against the United States, or adhering to their 
enemies, giving them aid and comfort." The Constitution of 
the State of New York defines treason against the State of New 
York to be, "levying war against the State, or adhering to its 
enemies, giving them aid and comfort." The Constitution of 
South Carolina defines and punishes treason against the State, 
in the language of the old English statute, brmging it to pre- 
cisely the same thing. 

As I said, therefore, the citizen of New York or the citizen 
of South Carolina (because, whether in one or the other locality, 
it is the same thing) is under two sovereigns, owing allegiance 
to each of them — the sovereign State in which lie is, owning 
the whole mass of residuary power (as it has been happily ex- 
pressed in the decisions of the Court) beyond tlie expre:<s, limit- 
ed power granted to the Federal Government by the Constitu- 
tion of the United States. 

I want to call your attention to another thing, as I go along 
with this line of the argument. I contend that, among the 
powers which have been delegated to the State governments 
by the Constitutions of the States, is the power in tiie executive 
government of the State, co-ordinately with the General Gov- 
ernment, to decide whether itself or the General Government 
has transcended the line which bounds their respective juris- 
dictions, upon any case in which a collision may arise between 
them, which affects the public domain of the State, or the 
whole State, or its citizens, considered as a body politic. And 
you will see, in a moment, the reason why I state my proposi- 
tion in that way. 

You have all heard of what, in tlie history of the country, 
has been called nullifiGation^ and you probably all understand 
very nearly what that is. By nullification^ as it has been 
spoken of in the history of our country, was meant the claim 
on the part of a State, by a convention of its people, or other- 
wise, to decide that the laws of the United States should not 
operate within its limits upon its citizens, in cases where the 
law could legitimately operate upon individual citizens. Be- 
cause you will all recollect that the laws of the United States, 
in their operation throughout the Union — their criminal laws, 
laws for the collection of duties, and similar laws — operate 
upon individual citizens, without reference to whether they 
are citizens of one State or another. The law operates upon 
them as people of the United States. And therefore, if you 
are carrying on business in the port of New York, and a con- 
signment comes to you, it is a question between you as a citi- 
zen of the United States and the Government whether the tariff, 
under which duties are attempted to be collected is valid, as 



92 TRIAL OF THE OFFICERS AND CREW 

between you and the Government, or not — whether it was 
legitimate for Congress to pass that tariff ; and, in all cases 
arising on these subjects, the Constitution has provided a tri- 
bunal, an arbiter, which is supreme and final, without any ap- 
peal. For instance, if you deny the validity of the law under 
which duties are attempted to be collected upon the goods im- 
ported by you, and the Collector attempts to collect them, you 
refuse to pay, or pay under protest, — and the case must come 
into the District Court of the United States ; and if the Court 
decides that the law was unconstitutional, you get immediate 
redress ; if it decides that it was constitutional, the question 
can be carried to the Supreme Court of the United States, and 
there finally settled. And, therefore, I say that in all cases that 
come within the purview of the judicial department of the 
Government, the laws of the United States, as administered by 
the Courts, and their decisions, bind the citizens of the States 
in every part of the land. 

But, gentlemen, there are an immense class of cases con- 
stantly arising where no opportunity can ever be presented to 
a Court to pass upon them, which were' never intended to be 
passed upon by a Court, which are cases of collision between 
the executive department of the General Government and the 
State government in matters, as I expressed it to you before, 
affecting the public domain, or the State or its citizens as a 
body politic. As laid down by the expounders of the Consti- 
tution of the United States, that instrument is one to which 
the States are parties, as well as the people of the United States 
and people of each State. 

Suppose a case of this kind. It is not a case likely to arise ; 
but every case may arise, as we have been sadly admonished 
by the events of the last few months. Suppose we had a 
President in the executive chair at Washington who was a citi- 
zen of the State of Massachusetts, and greatly interested in the 
prosperity of the commerce of the City of Boston ; and suppose 
that, being a wicked man (for wricked men have been some- 
times elected to offices in this and every country), he had con- 
ceived the iniquitous design of ruining the commerce of 'New 
York, for the purpose of benefiting the commerce of the City 
of Boston; and suppose, in the prosecution of that wicked de- 
sign, without the pretense of authority to do so under the Con- 
stitution of the United States, without a pretense that Congress 
had passed any law authorizing him to do anything of the 
kind, he should station a fleet of vessels, by orders to the com- 
mander of his squadron, off the harbor of New York, and 
should say, from this day forward the commerce of the port of 
ISFew York is hermetically closed, and the commerce which has 
formerly gone to New York must go to Boston. Is the State 



OF THE SCHOONER SAVANNAH. 93 

of New York, under a condition of things of that kind, to sub- 
mit to the closing of her commerce, to her ruin and destruc- 
tion ? Can she get before the Courts for redress against such 
an infringement of the Constitution by the President ? How 
is she to get there? She cannot go to the Supreme Court of 
the United States, for in the Courts of the United States there 
is no form of jurisdiction by which the question can be brought 
before the Courts by any possibility whatever ; and New York 
is a sovereign and independent State, and, so far as she has not 
conceded jurisdiction to the United States by the Constitution, 
has a right to exercise every sovereign and independent power 
that she has. There is a case, therefore, in which the Courts of 
law can afford no redress, — in which the Constitution has erect- 
ed no common arbiter between the General Government and 
the government of the State. 

Who, then, is the arbiter in such a case ? Why, gentle- 
men, the books have expressed it. It is the last argument of 
Kings — it is the law of might ; and in case of a collision of that 
kind, I maintain before you, upon this trial, that the State has 
a right to redress herself by force against the General Govern- 
ment ; that she has a right, if necessary, to commission cruisers, 
to drive the squadron away from the port of New York ; and 
she has a right, if more effectual, to commission private armed 
vessels to aid in driving them away, or to capture or subdue 
them. There being no common arbiter between her and the 
General Government in a case of that kind, she has a right to 
use force in redressing herself, and to take the power into her 
own hands. 

And the authorities are uniform upon that subject. I have 
been obliged to detain yon so long that I shall not read them 
to you ; but I have them collected before me, and in the future 
discussions which may take place before the Court I shall be 
able to show that that right was maintained by Hamilton, one 
of the most distinguished members of the Convention who 
helped to frame the Constitution, and the strongest advocate 
of placing large powers in the hands of the Federal Govern- 
ment ; by Madison, Jefferson, and all the Fathers of the Con- 
stitution, and by all who have written upon the subject ; that 
it is a doctrine which has been asserted by the Legislature of 
the State of New Jersey, and, indeed, by the State Legislatures 
of all the States, pretty much, in which the question has arisen 
— that the Supreme Court of the United States have themselves 
over and over again declared that the only safeguard that 
existed, under the Constitution, against the right of the State 
to come into collision with the General Government, in all cases 
whatever, was the existence of the judiciary power, in cases 
where that was applicable between them, and that in all cases 



94 TRIAL OF THE OFFICEKS AND CREW 

where that judiciary power failed, they were left to the law of 
nature and the might of Kings to redress themselves. 

Now, gentlemen, if I am right in that step in my argu- 
ment, — if that right would exist at any time or under any cir- 
cumstances, — there must be some authority, in the State that 
has the jurisdiction, to decide for the citizens of the State when 
that occasion has arisen ; and there must be some authority in 
the United States which lias a right to decide for the Govern- 
ment of the United States when that occasion has arisen ; 
whose decision (that is, in the General Government) is bind- 
ing for the people of all the States, except the State in col- 
lision with the Federal Government and which makes a con- 
trary decision ; and whose decision, in that State, is an 
authority and protection for all the citizens of that State. 

I say to you, moreover, gentlemen, that that right, under 
the law of nature, to resist the attempted usurpation of a 
power which has not been granted by the Constitution, re- 
sides, in a State, in the executive government, and necessarily 
in the Governor of the State ; because you will recollect one 
of the premises upon which we started was, that all the resid- 
uary power in the government, beyond what had been ex- 
pres-ly ceded to the Government of the United States by the 
Federal Constitution, is, by the Constitution, reserved to the 
State ; and the Governor of the State is the sentinel upon the 
watch-tower for the protection of the rights of the State. He 
is placed in that position to watch the danger from afar. He 
communicates with the General Government. Any steps taken 
having reference to the State, pass under his inspection ; and 
he alone has the materials within his reach for knowing the 
circumstances and deciding upon the facts in regard to the 
question whether the General Government is acting within 
the constitutional limit of its powers, or whether it is guilty 
of any usuipation of power, in any claim of authority it makes 
with reference to the affairs of the State. Because, in the case 
I have supposed, of a President elected from the State of Mas- 
sachusetts, seeking to destroy the commerce of New York, 
and stationing a fleet off the harbor, it is not likely that a 
President who was guilty of such wickedness would avow that 
he did it for the purpose of building up the commerce of Bos- 
ton and destroying that of New York. No ; be would say that 
he had notice of a hostile invasion — a fleet leaving the coast of 
Great Britain or of some other maritime power to make a de- 
scent upon New York, — that he had notice of some threatened 
injury to New York, which would make it necessary to station 
a fleet there, and to prevent vessels from entering or leaving. 
The Governor alone would have the means of ascertaining 
whether there was any foundation in truth for that, or whether 



OF THE SCHOONER SAVANNAH. 95 

it was a mere pretence to cover his iniquitous purpose; and 
in determining the case whether the Federal Government is 
exceeding its power or not, or acting within the constitutional 
limit of its power, the Governor has to deal with a compound 
question of law and fact. He must first read the Constitution 
of the United States, and ascertain its grant of power, and 
then compare that with the facts as presented to him ; and 
upon that comparison the jurisdiction is placed in him to de- 
cide whether the act of the General Government is within its 
power, or a transgression of it. 

He decides the question, and what more have we then ? 
He is, by his office, commander-in-chief of the military and 
naval forces of the State ; for the State can have both military 
and naval forces. It has its militia at all times. It is author- 
ized expressly by the Constitution to keep ships of war, in 
time of war. There is, certainly, a prohibition in the Consti- 
tution of the United States against a State granting letters of 
marque ; but that is a prohibition against its granting letters 
of marque in a war against foreign States ; it has no reference 
whatever to any possible collision that may take place between 
the State and the Federal Government. And that rule is laid 
down by Grotius and Yattel both ; for they both maintain 
and assert the right of the people, under every limited Consti- 
tution, in the case of a palpable infringement of power by the 
chief of the State, forcibly to resist it ; and Geotius puts the 
case of a State with a limited Constitution, having both a King 
and a Senate, in which the power of declaring war was in 
express terms reserved to the King alone, and he says that by 
no means prevents the Senate, in case of nn infringement of 
the Constitution by the King, from declaring and making war 
against him ; because the plirase is to be understood of a war 
with foreign nations and not of an internal war. I say, there- 
fore, that in a case of that kind — a palpable infringement by 
the General Government of the Constitution — the Governor of 
the State, in the first place, has the only means and the only 
right of deciding whether that infringement has taken place. 

In each State the Governor is commander-in-chief of the 
naval and military forces; he has a right to give military 
orders to citizens ; he has a right to order them to muster in 
the service of the State ; and if they disobey him they can be 
punished the same as they can in any civilized country. 

And more than that: suppose a case arises of that kind, 
in which the General and State Governments come into forci- 
ble collision, and suppose a citizen should take arms against 
the State; there is the law of the State which punishes for 
treason every citizen of the State who adheres to its enemies, 
giving them aid and comfort; and, under the theory of the 



96 TRIAL OF THE OFFICERS AJfD CREW 

prosecution, if he adheres to the State, and the Federal Gov- 
ernment should happen to be the victor in the contest, there 
is the law of the Federal Government which punishes him for 
adhering to the State. So that the poor citizen of the State, 
if this theory be correct, is to be punished and hanged, which- 
ever party may succeed in the unhappy contest. 

But, gentlemen, the law perpetrates no such absurdity as 
that ; for the very moment the doctrine for which I contend 
is admitted, the citizen, in a conflict like that between the 
Federal Government and the State, is not liable to be consid- 
ered a traitor or punished as suchj let him adhere to which of 
the two parties he pleases, in good faith. The reason of which 
is clear. He is the subject of two sovereigns, — the one the 
Federal Government and the other the State in which he lives. 
Either of these sovereigns has jurisdiction to decide for him 
the question whether the other is committing a usurpation of 
power or not; and it inevitably follows that if these two sover- 
eigns decide that question differently, the citizen is not to be 
punished as a traitor, let him adhere to which he pleases in 
good faith. And I submit to you, gentlemen, that is the only 
doctrine, under the Constitution of the United States, and un- 
der our complex system of government, which can be admitted 
for a moment. I will give you a confirmation of that. I have 
already stated to you the clause of the Constitution of the Uni- 
ted States which defines the punishment of the crime of trea- 
son against the United States, — and by looking at the reports 
of the debates in the Convention which adopted the Constitu- 
tion, you will find that the clause, as originally reported to 
the Convention, read : " Treason against the United States 
shall consist in levying war against the United States or any 
of them^ or in adhering to the enemies of the United States, or 
any of them ^ giving them aid and comfort," — and the clause, 
as reported, was amended by striking out the words, " or any 
of them," and making it read : " Treason against the United 
States shall consist in levying war against them or in adhering 
to their enemies," &c. Therefore, under our Constitution, 
treason against the United States must be levying war against 
all the States of this Confederacy. It does not mean the Gov- 
ernment. The amendment which I have spoken of shows it 
must be an act of hostility which is, in judgment of law, an 
act of hostility against all the States of the Union. Therefore 
I say that a citizen who owes allegiance to a State of the 
Union, when he acts in good faith, under the jurisdiction of 
one of the sovereigns to whom he owes allegiance — to wit, the 
State — does not levy war against the United States. He lev- 
ies war against the Government which claims to represent him, 
in that case, — his other sovereign, to whom he equally owes 



or THE SCHOONER SAVANNAH. 9T 

allegiance, deciding that that Government is committing an- 
usurpation of power; and he is acting under the authority of 
those in whom he rightly and justly reposes faith, — to whom 
has been delegated the right to decide ; and however the Gov- 
ernor of the State may be punished by impeachment, if he has 
acted in bad faith, the citizen cannot be subject to the halter 
for doing that which he was under a leo;al obligation to do. 

Ihen, gentlemen, to show the application of the rule for 
which I have been contending — and w'ith the necessary details 
of which I fear I must have wearied yon — to the case in hand : 
The moment it is conceded that any possible case can ai-ise in 
which a State would have the right to resist by force the Gen- 
eral Government, — the moment it is conceded that it is the 
Governor of the State, wdio, co-ordinately witli the President 
of the Union, has a right to decide that question for himself, — 
then I say ^ve have nothing whatever to do with the question^ 
whether, under the unhappy circumstances which have arisen, 
the Governor of the State, or of any of the States, decided right 
or wrong. We know' they did claim that the General Govern- 
ment was usurping power which did not belong to it. In fact, 
I think we have the confession of the President of the United 
States that, with an honest heart and with honest purposes, 
which I believe have actuated him all through, he has, as he 
says, for the preservation of the Union, the hope of humanity 
in all ages, and the greatest Government, as I shall ever be- 
lieve, that man has ever created, — that he has been compelled 
to, and did, usurp power which did not belong to him. Presi- 
dent Buchanan, before and after this controversy arose, as- 
serted plainly and unequivocally that he had searched the 
Constitution and laws of the United States for the purpose of 
finding any color of authority for the invasion of a State by 
military force, or the using of force against it ; and that he 
could find no such warrant in the Constitution. He was right. 
There was nothing of the kind in the Constitntion ; but he 
failed to see (in my humble judgment) that the law of nature 
gave him the power to enforce the legitimate authority of the 
Union, as it gave to the State government the power to repel 
usurpation. President Lincoln, when he assumed the reins of 
power, admitted that there was a doubt on that subject. He 
declared at first that it was not expedient to exercise that 
power, and that he would not exercise it. He changed his 
mind afterwards, and did exercise it ; and on the 13th of April 
he issued a proclamation calling for 75,000 volunteers, the first 
duty assigned to whom, as he stated in his proclamation, would 
be to invade the Soutliern States, for the purpose of recaptur- 
ing the forts and retaking the places that had passed out of the 
jurisdiction of the United States. And in a subsequent procla- 
7 



98 TRIAL OF THE OFFICERS AND CREW 

Illation he declared that he had granted to the military com- 
manders of these forces, without the sanction of an Act of 
Congress, authority to suspend the writ of habeas corpus^ within 
certain limits and in certain cases, in those States. And he 
makes the frank admission that, in his own belief at least, 
some of the powers which he had found himself compelled to 
exercise were not warranted in the Constitution of the United 
+States. 

Now these acts of hostility complained of in the indictment 
took place lon^ subsequent to that. This proclamation was in 
the month of April. These commissions were not issued, and 
the Act of the Confederate States to authorize their issue was 
not passed, until some time afterwards — after they had learned 
of this proclamation ; and this commission was not granted 
until the month of June subsequent. 

I say, therefore, a case was presented for the exercise of the 
jurisdiction of the Government of the United States, to decide 
whether it was exercising its rightful powers, under the Con- 
stitution, and for the Governor of the State to decide, for the 
State, that same question ; and that an unhappy case of col- 
lision, ever to be regretted and deplored, had arisen between 
the Government of the United States and the Government of 
those States ; and I say that the citizens of any one of those 
States owing the duty of allegiance to two sovereigns — to the 
government of their State and to the Government of the United 
States — had a riglit honestly to make their election to which 
of the two sovereigns they would adhere, and are not to be 
punished as traitors or pirates if they have decided not wisely, 
nor as we would have done in the section of the country where 
we live. 

I am sorry, gentlemen, to detain you on the question ; but 
it is a most important one — one that enters into the very mar- 
row of this case ; and we do claim that the issuing of this com- 
mission, whether on the footing of its having been issued by a 
de-facto Government, or by authority from the State, consider- 
ing it as remaining under the Constitution, was a commission 
that forms a protection to the defendants, and one which is 
not within the purview of the Act of 1790 ; because it was not, 
in the language of that section, a commission taken by a citi- 
zen of the United States to cruise against other citizens of the 
United States, either from a foreign Prince or State, or a per- 
son merely. 

You will observe that if the claim of the Confederate 
States, that the ordinances of secession are valid, be correct, 
then it is true that they are foreign States ; but their citizens 
have ceased to be citizens of the United States, and are there- 



•OF THE SCHOONER SAVANNAH. 99 

fore not witlnn the purview of the ninth section of tiie Act of 
170O. 

It", on the contrai'v, the claim on the part of tlie Grovern- 
ment of the United States, that these ordinances are absolutely 
void, be correct, then the States are still States of this Union, 
and the commission, being issued by their authority, is not a 
commission issued by 2,fweign State, and therefore the case 
is not within the purview of the ninth section of the Act of 
1790. 

I must allude very briefly, before closing, to another ground 
on which this defence will be placed : and that is, that con- 
ceding (if we were obliged to concede) that this was not an 
authority, such as contemplated, to give protection to cruisers 
as privateers, there was a state of war existing in which hostile 
forces were arrayed against each other in this country, and 
which made this capture of the Joseph a belligerent act, even 
obliterating State lines altogether, for the purpose of the argu- 
ment. 

But before I pass from what I have said to you on the sub- 
ject of the claim of authority of the States of this Union to 
come into collision with the General Government, allow me to 
call attention to the forcible precedents shown in the history 
of our own glorious Revolution, when the thirteen Colonies, 
numbering little more than three millions, instead of thirty, 
separated from Great Britain. At the time when that occur- 
red, in 1776, this very statute of 1790 was in force in England, 
as 1 have shown you. It was passed in England, if I recollect 
right, in 1694. The position of the thirteen Colonies towards 
the mother country, at that time, was precisely the position 
that those States which call themselves the " Confederate 
States" now occupy towards the General Government of the 
Union. 

Appealing to God, as the Supreme Ruler of the Universe, 
for the rectitude of their intentions, and acknowledging their 
accountability to no other power, they had claimed to resist 
the usurpation of the King of Great Britain. They had not 
even claimed, at the time of which I speak — for I speak of the 
end of the year 1775 and the beginning of 1776 — to declare 
their independence and to throw off their subjection to Great 
Britain. At that very early day there were veiy few in these 
Colonies that contemplated a thing of that kind, or whose 
minds could be brought to contemplate such an act. They 
had risen in resistance against what they claimed to be arbi- 
trarj-^ power ; they claimed that the King of Great Britain had 
encroached upon their rights and privileges in a manner not 
warranted by the Constitution of Great Britain. They did not 
claim to secede from Great Britain ; they did not claim to 



100 TRIAL OF THE OFFICERS AND CREW 

make themselves independent of subjection to her rule ; thej 
claimed to stop the course of usurpation which, they held, had 
been commenced; and they proposed to return under subjec- 
tion to the British crown the very moment that an accommo- 
dation should be made, yielding allegiance to the King of 
Great Britain as in all time before. And now, gentlemen, on 
the 23d March, 1776, on a Saturday, tlie little Continental Con- 
gress was sitting in the cliamber, of which you have often seen 
the picture, composed of the great, wise, and good men, who 
sat there in deliberation over the most momentous event that 
has ever occurred in modern times, if we except that now 
agitating and convulsing our beloved country. I never heard 
one of those men stigmatized as a pirate. I never heard one 
of those men calumniated as an enemy of the human race. I 
have often heard them called the greatest, wisest, and best men 
that ever lived on the face of God's earth. I will read to you 
what occurred on the 2'dd March, 1776 ; — they being subjects 
of the King of Great Britain, and liaving never claimed tO' 
throw off allegiance to liim, but claiming that he was usurping 
power which did not belong to him, and that they, as represent- 
atives of the thirteen Colonies of America, were the judges of 
that question and those facts, as we claim that the States are 
now the judges of this question and these facts. They adopted 
the following preamble and resolutions : 

" The Congress resumed the consideration of the Declaration, which was 
agreed to, as follows: 

"Whereas, The petitions of the United Colonies to the King for the 
redress of great and manifold grievances have not only been rejected, but 
treated with scorn and contempt, and the opposition to designs evidently- 
formed to reduce them to a state of servile subjection, and their necessary 
defence against hostile forces actually employed to subdue them, declared 
rebellion; 

" And Whereas, An unjust war hath been commenced against them 
which the commanders of the British fleets and armies have prosecuted and 
still continue to prosecute with their utmost vigor, in a cruel manner, wast- 
ing, spoiling, and destroying the country, burning houses and defenceless 
towns, and exposing the helpless inhabitants to every misery, from the in- 
clemency of the winter, and not only urging savages to invade the country, 
but instigating negroes to murder their masters ; 

"And Whereas, The Parliament of Great Britain hath lately passed an 
Act, aflSrming these Colonies to be in open rebellion ; forbidding all trade and 
commerce with the inhabitants thereof until they shall accept pardons, and 
submit to despotic rule; declaring their property wherever found upon the 
water liable to seizure and confiscation, and enacting that what had been 
done there by virtue of the royal authority were just and lawful acts, and 
shall be so deemed ; from all which it is manifest that the iniquitous schemes 
concerted to deprive them of the liberty they have a right to by the laws of 
nature, and the English Constitution, will be pertinaciously pursued. It 
being, therefore, necessary to provide for their defence and security, and 
justifiable to make reprisals upon their enemies and otherwise to annoy them 
{iccording to the laws and usages of nations ; the Congress, trusting that such 



OF THE SCHOONER SAVANNAH. 101 

of their friends in Great Britain (of whom it is confessed there are many en- 
titled to applause and gratitude for their patriotism and benevolence, and in 
whose favor a discrimination of property cannot be made) as shall suffer by 
captures will impute it to the authors of our common calamities, Do Declare 
and Resolve as follows, to wit : 

" Eesohed, That the Inhabitants of these Colonies be permitted to fit out 
armed vessels to cruise on the enemies of these United Colonies. 

" Resolved, That all ships and Other vessels, their tackle, apparel and fur- 
niture, and all goods, wares and merchandize belonging to any inhabitant of 
Great Britain, taken on the high seas, or between high and low water-mark, 
by any armed vessel fitted out by any private person or persons, and to 
whom commissions shall be granted, and being libelled and prosecuted in 
any Court erected for the trial of maritime affairs in any of these Colonies, 
shall be deemed and adjudged to be lawful prize, and after deducting and 
paying the wages which the seamen and mariners on board of such captures 
as are merchant ships and vessels shall be entitled to, according to the terms 
of their contracts, until the time of their adjudication, shall be condemned 
to and for the use of the owner or owners, and the officers, marines, and 
mariners of such armed vessels, according to such rules and proportions as 
they shall agree on. Provided, always, that this resolution shall not extend 
to any vessel bringing settlers, arms, ammunition or warlike stores to and for 
the use of these Colonies, or any of the inhabitants thereof who are friends 
to the American cause, or to such warlike stores, or to the effects of such 
settlers. 

" Resolved, That all ships or vessels, with their tackle, apparel and furni- 
ture, goods, wares and merchandize, belonging to any inhabitant of Great 
Britain, as aforesaid, which shall be taken by any of the vessels of war of 
these United Colonies, shall be deemed forfeited ; one-third, after deducting 
and paying the wages of seamen and mariners, as aforesaid, to the officers 
and men on board, and two-thirds to the use of the United Colonies. 

^^ Resolved, That all ships or vessels, with their tackle, apparel and goods, 
wares and merchandizes, belonging to any inhabitant of Great Britain, as 
aforesaid, which shall be taken by any vessel of war fitted out by and at the 
expense of any of the United Colonies, shall be deemed forfeited and divided, 
after deducting and paying the wages of seamen and mariners, as aforesaid, 
in such manner and proportions as the Assembly or Convention of such Colo- 
ny shall direct." 

There are two or three other resohitions, which it is not 
necessary for me to trouble you with the reading of. You will 
bear in mind that there were no two sovereignties over these 
United Colonies at that time. They had no sovereignty or in- 
dependence whatever ; they were mere Provinces of the British 
Crown ; the Governors derived their appointment from the 
Crown itself, or from the proprietors of the Colonies ; and these 
wise and good men, on the 23d March, 1776, claimed that the 
King of Great Britain had usurped powers which did not be- 
long to him under the Constitution of Great Britain, and that 
they had the right to resist his encroachments ; and they 
authorized letters of marque to cruise against the ships and 
property of their fellow subjects of Great Britain, because of 
the state of things which arose from a collision between them 
and the Crown. They were enemies, and although they re- 
gretted that they had to injure in their property men who were 



102 TRIAL OF THE OFFICERS AND CREW 

their friends, they trusted they woiilcl excuse them, owing to 
the inevitable necessity that existed and the impossibility of 
discriminating between friends and foes in the case'of inhabit- 
ants of Great Britain. 

And now, gentlemen, to trouble you with one more brief 
reference, let me show you what took place before that Act of 
the Provincial Congress was passed in the Province of Massa- 
chusetts. They had already passed a Provincial Act of tbe 
General Assembly, couched in similar language, authoriziog 
cruisers and privateers against the enemies of that Province ; 
and you will see what occurred. I read again from Cooper's 
Naval History, 1st Yol., p. 42. He is speaking of the year 
1776: 

" The first nautical enterprise that succeeded the battle of Lexington was 
one purely of private adventure. The intelligence of this conflict was brought 
to Machias, in Maine, on Saturday, the 9th of May, 1775. An armed schoon- 
er, in the service of the Crown, called the Margaretta, was lying in port, with, 
two sloops under her convoy, that were loading with lumber on behalf of the 
King's Government. 

" The bearers of the news were enjoined to be silent, — a plan to capture the 
Margaretta having been immediately projected among some of the more 
spirited of the inhabitants. The next day being Sunday, it was hoped that 
the officers of the schooner might be seized while in church ; but the scheme 
failed, in consequence of the precipitation of some engaged. Captain Moore, 
who commanded the Margaretta, saw the assailants, and, with his officers, 
escaped through the windows of the church to the shore, where they were 
protected by the guns of their vessel. The alarm was now taken ; springs 
were got on the Margaretta's cables, and a few harmless shot were fired over 
the town by way of intimidation. After a little delay, however, the schooner 
dropped down below the town to a distance exceeding a league. Here she 
was followed, summoned to surrender, and fired on from a high bank, which 
her own shot could not reach. The Margaretta again weighed, and running 
into the bay, at the confluence of the two rivers, anchored. The following 
morning, which was Monday, the 11th of May, four young men took posses- 
sion of one of the lumber sloops, and, bringing her alongside of a wharf, they 
gave three cheers as a signal for volunteers. On explaining that their inten- 
tions were to make an attack on the Margaretta, a party of about thirty-five 
athletic men was soon collected. Arming themselves with firearms, pitch- 
forks, and axes, and throwing a small stock of provisions into the sloop, these 
spirited freemen made sail on their craft, with a light breeze at northwest. 
When the Margaretta observed the approach of the sloop, she weighed and 
crowded sail to avoid a conflict that was every way undesirable, — her com- 
mander not yet being apprised of all the facts that had occurred near Boston. 
In jibing, the schooner carried away her main-boom, but, continuing to 
stand on, she ran into Holmes' Bay, and took a spar out of a vessel that was 
lying there. While these repairs were making, the sloop hove in sight again, 
and the Margaretta stood out to sea, in the hope of avoiding her. The breeze 
freshened, and, with the wind on the quarter, the sloop proved to be the 
better sailer. So anxious was the Margaretta to avoid a collision, that Cap- 
tain Moore now cut away his boats ; but, finding this ineffectual, and that 
his assailants were fast closing with him, he opened a fire — the schooner hav- 
ing an armament of four light guns and fourteen swivels. A man was killed 
on board the sloop, which immediately returned the fire with a wall-piece.. 



OF THE SCHOONER SAVANNAH, 103 

This discharge killed the man at the Margaretta's helm, and cleared her 
quarter-deck. The schooner broached to, when the sloop gave a general dis- 
charge. Almost at the same instant the two vessels came foul of each other. 
A short conflict now took place with musketry, — Captain Moore throwing 
hand-grenades, with considerable effect, in person. This officer was imme- 
diately afterwards shot down, however, when the people of the sloop boarded 
and took possession of their prize. The loss of life in this aflfair was not very 
great, though twenty men, on both sides, are said to have been killed andi 
wounded. The force of the Margaretta, even in men, was much the most 
considerable ; though the crew of no regular cruiser can ever equal, in spirit 
and energy, a body of volunteers assembled on an occasion like this. There 
was, originally, no commander in the sloop ; but, previously to engaging the- 
schooner, Jeremiah O'Brien was selected for that station. This affair was 
the Lexington of the sea,— for, like that celebrated land conflict, it was a. 
rising of the people against a regular force ; was characterized by a long- 
chase, a bloody struggle, and a triumph. It was also the first blow struck, 
on the water, after the war of the American Revolution had actually conx- 
menced." 

And that is the act, gentlemen, which, instead of being the 
act of desperadoes, pirates, and enemies of the hnman race, is 
recorded in history as an act of spirited freemen. You will re- 
member that the act was done withont any commission ; it was 
done while these Provinces were Colonies of the British Crown ; 
it was done long before the Declaration of Independence. TliC' 
Act of the Provincial Congress, so far as that could have any 
validity, authorizing letters of niarqne, was not passed until, 
afterwards, or the 23d of March. The Declaration of Inde- 
pendence was passed on the 4th July, 177G. According to 
the theory on the other side, call this lawful secession — call it 
revolution — call it what you please, — these Confederate States, 
as they are called, are not independent. They have not any 
Government — they cannot do any thing until their independ- 
ence is acknowledged by the United States. Therefore, accord- 
ing to the theory of the other side, no act of the Provincial 
Congress, no act of any of the United Colonies, had any va- 
lidity in it until the treaty of peace between them and Great 
Britain was signed, in 1783, But, I need not tell you, gentle- 
men, that in this country, in all public documents, in all public 
proceedings, in the decisions of our Courts, the actual establish- 
ment of the independence of the United States is dated as 
having been accomplished on the 4th July, 1776, All the 
state papers that run in the name and by the authority of the- 
United States of America, run in their name, and by their 
authority, as of such a year of their independence, dating from 
the 4th July, 177H, Let me, therefore, show yon what was 
done by the Colonies^ in 1776, before and after the date of the 
Declaration of Independence ; and let me show how many pira- 
cies our hardy seamen of those days must have committed, on 
the theory of the prosecution in this case. I read again from 
Cooper's Naval History : 



HOi TRIAL OF THE OFFICERS AND CREW 

" Some of the English accounts of this period state that near a hundred 
privateers had been fitted out of New England alone, in the two first years of 
^the war; and the number of seamen in the service of the Crown, employed 
against the new States of America, was computed at 26,000. 

" The Colonies obtained many important supplies, colonial as well as mili- 
tary, and even manufactured articles of ordinary use, by means of their cap- 
•tures, — scarce a day passing that vessels of greater or less value did not arrrive 
in some one of the ports of their extensive coast. By a list published in the 
'Remembrancer,' an English work of credit, it appears that 342 sail of English 
vessels had been taken by American cruisers, in 1776 ; of which number 44 
were recaptured, 18 released, and 4 burned." 

"Well, gentlemen, witli these facts staring you in the face, I 
•ask you if it is not flying in the face of history — if it is not re- 
jecting and trampling in the dust the glorious traditions of our 
own country — to be asked seriously to sit in that j ury box and try 
these men for their lives, as pirates and enemies of the human 
race, on the state of things existing here ? Gentlemen, my mind 
may be under a strong hallucination on the subject; but I can- 
not conceive the theory on which the prosecution can come 
into Court, on the state of things existing, and ask for a convic- 
tion, Eemember that, in saying that, I am speaking as a I^ortli- 
•ern man, — fur I am a Northern man; I am speaking as a sub- 
ject and adherent to the Government of the Union ; I am speak- 
ing as one who loves the flag of this country — as one who was 
born under it — as one who hopes to be permitted to die under 
it ; and I am speaking with tears in my eyes, because I do not 
want to see that flag tarnished by a judicial murder, and by an 
act cowardly and dastardly, as I say it would be, if we are to 
treat these men as pirates, while we are engaged in a hand-to- 
hand conflict with them with arms in the field, and while they 
are asserting and maintaining the rights which we claimed for 
ourselves in former ages. In God's name, gentlemen, let us, if 
necessary, fight them ; if we must have civil war, let us con- 
vince them, by the argument of arms, and by other arguments 
that we can bring to bear, that they are in the wrong ; let us 
bring them back into the Union, and show them, when they 
get back, that they have made a great mistake ; but do not let 
us tarnish the escutcheon of our country, and disgrace ourselves 
in the eyes of the civilized world, by treating tliis mighty sub- 
ject, when States are meeting in mortal shock and conflict, with 
the ax and the halter. In God's name, let us have none of 
that ! 

I have but one word more to say, gentlemen, before I close. 
I have already said that we claim that this commission is an 
adequate protection, considering that tliis is an inter-state war. 
It has been so considered, and is now so considered by the 
Government of the United States itself, because, after the 
conflict had commenced and had gone on for some time, it 



OF THE SCHOONER SAVANNAH, 105 

being treated by the Government at Washington as a mere 
rebetlion or insurrection by insurgent and rebellious citizens in 
some of the Southern States, it was found that it had assumed 
too mighty proportions to be treated in that way, and there- 
fore, in the month of July last, the Congress then in session 
passed an Act, one of the recitals of which was that this state 
of things had broken out and still existed, and that the war 
was claimed to be waged under the authority of the govern- 
ments of the States, and that the governments of the States 
did not repudiate the existence of that authority. Congress 
then proceeded to legislate upon the assumption of the fact that 
the war was carried on under the authority of the governments 
of the States. There is a distinct recognition by your own 
Government of the fact that this is an inter-state war, and that 
the enemies whom our brave troops are encountering in the 
field are led on under authority emanating from those who are 
rightfully and lawfully administering the Government of the 
States. 

You will recollect, gentlemen, that in most of those States 
the State governments are the same as they were before this 
condition of things broke out. There has been no change in 
the State constitutions. In a great many of them there has 
been no change in the personnel of those administering the 
government. They are the recognized legitimate Governors 
of the States, whatever may be said of those claiming to ad- 
minister the Government of the Confederate States. 

But, gentlemen, let us pass from that, and let us suppose it 
was not a war carried on by authority of the States. It is, 
then, a civil war, and a civil war of immense and vast propor- 
tions ; and the authorities are equally clear in that case, that, 
from the moment that a war of that kind exists, captures on 
land and at sea are to be treated as prizes of war, and prison- 
ers treated as prisoners of war, and that the vocation of the 
ax and the halter are gone. I refer you to but a single au- 
thority on this subject, because I have already occupied more 
of your time than I had intended doing, and I have reason to 
be very grateful to you for the patience and attention with 
which you have listened to me in the extended remarks that I 
was obliged to make. I refer to Yattel, Book 3, cap. 18, sees. 
287, 292 and 293 : 

" Sec. 287. It is a question very much debated whether a sovereign is bound 
to observe the common laws of war towards rebeUious subjects who have 
openly taken up arms against him. A flatterer, or a Prince of cruel and ar- 
bitrary disposition, will immediately pronounce that the laws of war were 
not made for rebels, for whom no punishment can be too severe. Let us 
proceed more soberly, and reason from the incontestible principles above 
laid down." 



106 TKIAL OF THE OFFICERS AND CREW 

The author then proceeds to enforce the duty of modera- 
tion towards mere rebels, and proceeds : 

" Sec. 292. When a party is formed in a State who no longer obey the 
sovereign, and are possessed of suflBcie'nt strength to oppose him ; or when, 
in a Republic, the nation is divided into two opposite factions, and both sides 
take up arms, this is called a civil war. Some writers confine this term to a 
just insurrection of the subjects against their sovereign to distinguish that 
lawful resistance from rebellion, which is an open and unjust resistance. But 
what appellation will they give to a war which arises in a Republic, torn by 
two factions, or, in a Monarchy, between two competitors for the Crown ? 
Custom appropriates the term of civil war to every war between the members 
of one and the same political society. If it be between part of the citizens 
on the one side, and the sovereign with those who continue in obedience to 
him on the other, provided the malcontents have any reason for taking up 
arms, nothing further is required to entitle such disturbance to the name of 
civil war, and not that of rebellion. This latter term is applied only to such 
an insurrection against lawful authority as is void of all appearance of jus- 
tice. The sovereign, indeed, never fails to bestow the appellation of rebels 
on all such of his subjects as openly resist him ; but when the latter have 
acquired sufficient strength to give him effectual opposition, and to oblige 
him to carry on the war against them according to the established rules, he 
must necessarily submit to the use of the term civil war. 

" Sec. 293. It is foreign to our purpose, in this place, to weigh the reasons 
which may authorize and justify a civil war ; we have elsewhere treated of 
the cases wherein subjects may resist the sovereign. (Book 1, cap. 4.) Set- 
ting, therefore, the justice of the cause wholly out of the question, it only 
remains for us to consider the maxims which ought to be observed in a civil 
war, and to examine whether the sovereign, in particular, is on such an oc- 
casion bound to conform to the established laws of war. 

" A civil war breaks the bonds of society and Government, or at least sus- 
pends their force and effect ; it produces in the nation two independent par- 
ties, who consider each other as enemies, and acknowledge no common judge. 
Those two parties, therefore, must necessarily be considered as thenceforward 
constituting, at least for a time, two separate bodies — two distinct societies. 
Though one of the parties may have been to blame in breaking the unity of the 
State, and resisting the lawful authority, they are not the less divided in fact. 
Besides, who shall judge them? Who should pronounce on which side the 
right or the wrong lies ? On each they have no common superior. They 
stand, therefore, in precisely the same predicament as two nations who en- 
gage in a contest, and, being unable to come to an agreement, have recourse 
to arms. 

" This being the case, it is very evident that the common laws of war — 
those maxims of humanity, moderation and honor, which we have already 
detailed in the course of this work — ought to be observed by both parties in 
every civil war. For the same reasons which render the observance of those 
maxims a matter of obligation between State and State, it becomes equally 
and even more necessary in the unhappy circumstances of two incensed par- 
ties lacerating their common country. Should the sovereign conceive he has 
a right to hang up his prisoners as rebels, the opposite party will make re- 
prisals ; if he does not religiously observe the capitulations, and all other 
conventions made with his enemies, they will no longer rely on his word ; 
should he burn and ravage, they will follow his example ; the war will become 
cruel, horrible, and every day more destructive to the nation." 

After noticing the cases of the Due de Montpensier and 
Baron des Ad rets, he continues : 



OF THE SCHOONER SAVANNAH. 107 

" At length it became necessary to relinquish those pretensions to judi- 
cial authority over men who proved themselves capable of supporting their 
cause by force of arms, and to treat them not as criminals, but as enemies. 
Even the troops have often refused to serve in a war wherein the Prince ex- 
posed them to cruel reprisals. Officers who had the highest sense of honor, 
though ready to shed their blood on the field of battle for his service, have 
not thought it any part of their duty to run the hazard of an ignominious 
death. Whenever, therefore, a numerous body of men think they have a 
right to resist the sovereign, and feel themselves in a condition to appeal to 
the sword, the war ought to be carried on by the contending parties in the 
same manner as by two differennt nations, and they ought to leave open the 
same means for preventing its being carried into outrageous extremities and 
for the restoration of peace." 

Now, gentlemen, can anything be more explicit on this 
subject, leaving out of view all questions of the authority of 
the States or of the Confederate Government to issue this 
commission ? Can anything be more pointed or more direct 
on the. question ? Treat this as a mere civil war — treat it as 
though all State lines of the Union were obliterated, and as 
though this was a common people, actuated by some religious 
or political fanaticism, who had set themselves to cutting each 
others' throats — treat it as a purely civil strife, without any 
question of State sovereignty or State jurisdiction connected 
with it, — and still you have the authority of Yattel, an author- 
ity than which none can be higher, as the Court will tell you 
— and I could multiply authorities on that point from now 
until the shadows of night set in — that even in that case it is 
obligatory to observe the laws of war just the same as if it 
was a combat between two nations, instead of between two 
sections of the same people. Even if there was no commis- 
sion whatever here, by any one having a color or pretence of 
right to issue it, but if those belonging to one set of combat- 
ants, in a civil strife which had reached the magnitude and 
proportions of which Vattel speaks, had set out to cruise, and 
had captured this vessel, I submit to you that it could not be 
treated as a case of piracy. 

I have closed, gentlemen, the argument which, on opening 
the case, I have thought it necessary to advance in order that 
you may be able to apply the evidence. Every word that 
Vattel says there endorses the entreaty which I have made to 
you, as you love your country and as you love her prosperity, 
to view this case without passion and without prejudice cre- 
ated by the section in which you live, as I know and trust by 
your looks and indications that you will. And I say to you, 
gentlemen, that a greater stab could not be inflicted on our 
Government — not a greater wound could be given to the cause 
in which we all, in this section of the country, are enlisted — 
than to proclaim the doctrine that these cases are to be treated 



108 TRIAL OF THE OFFICERS AND CREW 

as cases for the halter, instead of as cases of prisoners of war 
between civilized people and nations. The very course of 
enlistment of troops for the war has been stopped in this city 
by that threat. As 1 said before, the officers and soldiers on 
the banks of the Potomac, if they could be appealed to on that 
question, would say, "For God's sake, leave this to the clash 
of arms, and to regular and legitimate warfare, and do not 
expose us to the double hazard of meeting death on the field, 
or meeting an ignominious death if we are captured." And 
as history has recorded what I have called your attention to 
as having occurred in the days of the Revolution, so history 
will record the events of the year and of the hour in which we 
are now enacting our little part in this mighty drama. The 
history of this day will be preserved. The history of yom* ver- 
dict will be preserved. You will carry the remembrance of 
your verdict when you go to your homes. It will come to you 
in the solemn and still hours of the night. It will come to 
you clothed in all the solemn importance which attaches to it, 
with the lives of twelve men hanging upon it, with the honor 
of your country at stake, with events which no one can fore- 
see to spring from it. And I have only to reiterate the prayer, 
for our own sake and for the sake of the country, that God 
may inspire you to render a verdict which will redound to the 
honor of the country, and that will bring repose to your own 
consciences when you think of it, long after this present fitful 
fever of excitement shall have passed away. 



DOCUMENTARY TESTIMONY. 

JIfr. Brady ^ for the defence, put in evidence the following 
documents : 

1. Preliminary Chart of Part of the sea-coast of Virginia, 
and Entrance to Chesapeake Bay. — Coast Survey Work, dated 
1855. 

2. The Constitution of Virginia, adopted June 29, 1776. It 
refers only to the western and northern boundaries of Virginia 
— Art. 21 — but recognizes the Charter of 1609. That charter 
(Heramings' Statutes, 1st vol., p. 88) gives to Virginia jurisdic- 
tion over all havens and ports, and all islands lying within 100 
miles of the shores. 

3. The Act to Ratify the Compact between Maryland and 
Virginia, passed January 3, 1786 — to be found in the Revised 
Code of Virginia, page 53. It makes Chesapeake Bay, from 
the capes, entirely in Virginia. 

Mr. Sullivan also put in evidence, from Putnam^ s Rebellion 
Record^ the following documents : 



OF THE SCHOONER 8A.VANNAH. 109 

1. Proclamation of the President of tlie United States, of 
1 5th April, 1861. {See Appendix.) 

2. Proclamation of the President, of 19th April,. 1861, de- 
claring a blockade. {See Appendix.) 

3. Proclamation of 27th April, 1861, extending the blockade 
to the coasts of Virginia and North Carolina. 

4. Proclamation of May 3d, for an additional military- 
force of 42,031 men, and the increase of the regular army and 
navy. 

5. The Secession Ordinance of South Carolina, dated Dec. 
20, 1860. 

Mr. Smith stated that, in regard to several of the docu- 
ments, the prosecution objected to them, — not, however, as to 
any informality of proof. He supposed that the argument as 
to their relevancy might be reserved till the whole body of 
the testimony was in. 

Judge Nelson : That is the view we take of it. 

Mr. Brady suggested that the defence would furnish, to- 
morrow, a list of the documents which they desired to put in 
evidence. 

The Court then, at half-past 4 P. M., adjourned to Friday, 
at 11 A. M. 



THIRD DAY. 

Friday, Oc?!. 25, 1861. 

The Court met at 11 o'clock A. M. 

Mr. Brady stated to the Court that two of the prisoners- 
Richard Palmer and Alexander Coid— were exceedingly ill, 
suffering from pulmonary consumption, and requested that 
they might be permitted to leave the court-room when they 
wished. It was not necessary that they should be present 
during all the proceedings. 

Mr. Smith : It would be proper that the prisoners make the 
application. 

31r. Brady : They will remain in Court as long as they 
can ; and will, of course, be present when the Court charges 
the Jury. 



110 TRIAL OF THE OFFICERS AND CREW 

The Court directed the Marshal to provide a room for the 
prisoners to retire to, when they desired. 

Mr. Sulli/Gan: Before adjourning yesterday it was stated 
that the different ordinances of the seceded States were all con- 
sidered in evidence without being read. 

Mr. Smith : Are any of them later in date than the com- 
mission to the Savannah? 

Mr. Sullivan: No, sir. Some States have seceded since 
the date of the commission, and have been received into the 
Confederacy. 

Mr. Evarts: We will assume, until the contrary appears, 
that there are no documents of date later than the supposed 
authorization of the privateer. 

Mr. Larocqiie : With this qualification, — that there are a 
great many documents from our own Government which recog- 
nize a state of facts existing anterior to those documents. 

Mr. Sullivan read in evidence from page 10 of Putnamh 
Rebellion Record: 

Letter from Secretary of War, John B. Floyd, to President 
James Buchanan, dated December 29, 1860. 

President Buchanan's reply, dated December 31, 1860. 

Also, from page 1 1 of Rebellion Record : 
The Correspondence between the South Carolina Commis- 
sioners and the President of the United States. 
[Considered as read.] 

Also, referred to page 19 of Rebellion Record.^ for the Cor- 
respondence between Major Anderson and Governor Pickens, 
with reference to firing on the Star of the West. 

Read Major Anderson's first letter (without date), copied 
from Charleston Courier^ of Jan. 10, 1861. {See Appendix.) 

Governor Pickens' reply, and second communication from 
Major Anderson. {See Appendix.) 

_ Also, from page 29 of Rebellion Record., containing the sec- 
tions of the Constitution of the Confederate States which differ 
from the Constitution of the United States. 

Also, from page 31 oi Rebellion Record : Inaugural of Jeffer- 
son Davis, as President of the Confederate States. 

Also, page 36 of Rebellion Record : Inaugural of Abraham 
Lincoln, President of the United States. (For the passages, 
see Appendix.) 

Also, page 61 of Rebellion Record : The President's Speech 
to the Virginia Commissioners. {See Appendix.) 

Also, page 71 oi Rebellion Record: Proclamation of Jeffer- 



OF THE SCHOONER SAVANNAH. Ill 

son Davis, with reference to the letters of marque, dated 17th 
April, 1861. 

Also, page 195 of Rebellion Record: An Act recognizing a 
state of war, by the Confederate Congress, — published May 6, 
1861. 

[Read Section 6.] 

Mr. Lord read from pages 17, 19, and 20, of Diary of Re- 
hellion Record^ to give the date of certain events : 

1861, February 8. The Constitution of the Confederate States adopted. 
" 18. JefiFerson Davis inaugurated President. 

" 21. The President of the Southern Confederacy nominates 
members of his Cabinet. 

" 21. Congress at Montgomery passed an Act declaring the 
establishment of free navigation of the Mississippi. 

March, 19. Confederates passed an Act for organizing the Confederate 

States. 

April 8. South Carolina Convention ratified the Constitution of 
the Confederate States by a vote of 119 to 16. 

Mr. Sullivan: We propose now to introduce the papers 
found on board the Savannah when she was captured. The 
history of these papers is, that they were captured by the 
United States officers, taken from the Savannah, and come into 
our hands now, in Court, through the hands of the United States 
District Attorney, in whose possession they have been ; — and 
they have been proceeded upon in the prize-court, for the con- 
demnation of the Savannah. The first I read, is — 

The Commission to the Savannah, dated 18th May, 1861. 

Also, put in evidence, copy of Act recognizing the existence 
of war between the United States and the Confederate States, 
and concerning letters of marque, — approved May 6, 1861. 

Also, read President Davis* Instructions to Private Armed 
Vessels., — appended to the Act. 

Also, an Act regulating the sale of prizes, dated May 6, 
1861,— approved May 14,1861. 

Also, an Act relative to prisoners of war, dated May 21, 1861. 

Mr. Sullivan also read in evidence three extracts from the 
Message of President Lincoln to Congress, at Special Session of 
July 4, 1861. {See Appendix.) 

Also, extracts from the Message of President Buchanan, at 
the opening of regular Session of Congress, December 3d, 1860. 
{^See Appendix.) 



112 TRIAL OF THE OFFICERS AND CREW 

Also, from page 245 of Rebellion Record : Proclamation of 
the Queen of Great Britain, dated May 13, 1861. 

Mr.Evarts objected to this, on the ground that it could not 
have been received here prior to the date of tlie commission. 

Objection overruled. 

Also, from page 170 of Rebellion Record : Proclamation 
of the Emperor of France, — published June 11, 1861. 

Also, the Articles of Capitulation of the Forts at the Hat- 
teras Inlet, dated August 29th, on board the United States flag- 
ship Minnesota, oif Hatteras Inlet. 

Mr. Evarts remarked that this latter document was not 
within any propositions hitherto passed upon ; but he did not 
desire to arrest the matter by any discussion, if their honors 
thought it should be received. 

Judge Nelson : It may be received provisionally. 

Mr. Brady also put in evidence the Charleston Daily 
Courier^ of 11th June, 1861, containing a Judicial Adver- 
tisement, — a monition on the filing of a libel in the Admiralty 
Court of the Confederate States of America, for the South Caro- 
lina District, and an advertisement of the sale of the Joseph, 
she having been captured on the high seas by the armed 
schooner Savannah, under the command of T. Harrison Baker, 
— attested in the name of Judge Magrath, 6th June, 1861. 

And containing, also, a judicial Act, relating to the adminis- 
tration of an estate in due course cf law. 

Mr. Brady stated that the reference was to show that they 
had a judicial system established under their own Govern- 
ment. 

Lieutenant D. B. Tompkins recalled for the defence, and 
examined by Mr. /Sidlivan. 

Q. State your knowledge as to the sending of any flags of 
truce while your vessel, the Harriet Lane, was lying at Fortress 
Monroe ? 

(Same objection ; received provisionally.) 

A. I have seen flags of truce come down from the direction 
of Norfolk. 

Q. Did your vessel have any com minii cation with the 
oflicer bearing the flag of truce? A. No, sir. 

Q. Did they come with the Confederate flag flying on the 
same vessel with the flag of truce ? 

A. Yes. One vessel came down with the Confederate flag 
flying, and a flag of truce, also. 

Q. Where was it received, and by what ofiicer ? 



OF THE SCHOONER SAVANNAH. 113 

A. I am not jDositive wlietlier it was received by the Cum- 
berland or the Minnesota. They communicated with either of 
those vessels. 

Q. Were any vessels or boats, with flags of trnce, ever sent 
from Fort Monroe toward the Confederate forces ? 

A. I have seen vessels go up the Roads with a flag of 
truce. 

Q. And the United States flag on the same vessels ? 

A. Yes. 

Q, you saw Captain Baker and the other prisoners — were 
they uniformed ? 

A. No, sir; I do not think they had any regular uniform. 
Captain Baker had a uniform, with metal buttons on his coat. 
I did not notice wdiat was on the buttons. 

Q. He had on such a dress as he wears to day? 

A. Something similar to that. He was the only one who 
Lad a uniform. 

Q. Do jou know anything as to the exchange of prisoners 
betw^een the forces of the United States and of the Confederate 
States on any station where you have been? A. No, sir. 

The defence here closed. 

The District Attorney stated that the prosecution had no 
rebutting evidence to offer. 

Judge Nelson : Before counsel commence summing up the 
case to the Jury, they will please present the propositions of 
law on both sides. 

Mr. Lord: I was going to ask my friends on the other side 
to give us their authorities, so that we shall know what we are 
to go to the Jury upon. We would then be able to lay our 
views before the Court and to divide the labor of summing up 
— some of us addressing ourselves entirely to the Court. 

Mr. Evarts : I would have no objection to taking that 
course if I had been prepared for it. In the presentation of 
the case, we rely on the statute of the United States — on the 
fact that the defendants are within the terms of the statute ; and 
that the affirmative defence, growing out of the state of things 
in this country, does not apply in a Court of the United States, 
and under a statute of the United States, which still covers the 
condition of the persons brought in. Whether they are citizens 
or aliens, nothing has been shown which takes tliem out of the 
general operation of our laws. On the question of the ingre- 
dients of the crime of piracy — which is a particular inquiry, 
irrespective of the considerations connected with the state of 



114 TRIAL OF THE OFFICERS AND CREW 

war — I do not know that we need refer to anything which is 
not qnite familiar. The cases refeired to by the learned coun- 
sel for the prisoners — the United States vs. Jones, the United 
States vs. Palmer, and the United States vs. Tully — contain all 
the views in reference to the ingredients of the crime of piracy, 
or to the construction of the statutes, that we need to pre- 
sent. In the general elementary books to which the learned 
counsel have referred — the various books on the Pleas of the 
Crown — there are passages to which we shall have occasion to 
refer. 

Judge, Nelson: The counselfor the Government should give 
to the counsel on the otlier side, before the summing up is com- 
menced, all the authorities on which they intend to rely. 

Mr. Eimrts : That we shall do, of course. 

Judge Nelson: We will take them now. 

3fr. Evarts : I refer to 1st East's Pleas of the Crown, 70-1, 
It is under the title of Treason, but it is on the point of the 
character of the crime as qualified by the influence on the 
party, of force, or of the state of the population by which the 
accused was surrounded. I read from page 70 : 

"Joining with rebels freely and voluntarily in any act of rebellion is levy- 
ing war against the King; and this, too, though the party was not privy to 
their intent. This was holden in the case of the Earl of Southampton, and 
again in Purchase's case, in 1710. But yet it seems necessary, in this case, 
either that the party joining with rebels, and ignorant of their intent at the 
time, should do some deliberate act towards the execution of their design, or 
else should be found to have aided and assisted those who did. * * But 
if the joining with rebels be from fear of present death, and while the 
party is under actual force, such fear and compulsion will excuse him. It is 
incumbent, however, on the party setting up this defence, to give satisfactory 
proof that the compulsion continued durmg all the time that he stayed with 
the rebels." 

The case of Axtell, one of the regicides, is referred to. The 
defense was set up for him that he acted by command of his 
superior officer ; but that was ruled to be n j defence. I nuw 
read from page 104 : 

"One species of treason, namely, that of committing hostilities at sea, 
under color of a foreign commission, or any other species of adherence to the 
King's enemies there, may be indicted and tried as piracy, by virtue of the 
statutes." 

That is, that although being guilty of treason, in its general 
character of adhering to the enemy, yet it also falls within the 
description of piracy, and ma}^ be proceeded against as such. 
On the question of the element of force or intimidation as 



OF THE SCHOONER SAVANNAH. 115 

enterino; into the crime of robbeiy, I refer to 1st Hawkins' Pleas 
of the Crown, page 285 : 

"Wherever a person assaults another with such circumstances of terror 
as put him into fear, and cause him, by reason of such fear, to part with his 
money, the taking thereof is adjudged robbery, whether there were any wea- 
pon drawn, or not, or whetlicr the person assaulted deHvered his money upon 
the other's command, or afterwards gave it him upon his ceasing to use force, 
and begging an alms ; for he was put into fear by his assault, and gives him 
his money to get rid of him. 

"But it is not necessary that the fact of actual fear should either be laid 
in the indictment or be proved upon the trial ; it is sufficient if the offence 
be charged to be done violenter et contra voluntatem. And if it appear 
upon the evidence to have been attended with those circumstances of violence 
or terror which in common experience are likely to induce a man to part 
with his property against his consent, either for the safety of his person 
or for the preservation of his character and good name, it will amount to a 
robbery." 

I refer to Hale's Pleas of the Crown, vol. I., p. 68, on the 
question of double or doubtful allegiance : 

" Though there may be due from the same person suboi-dinate allegiances, 
which, though they are not without an exception of the fidelity^ due to the su- 
perior Prince, yet are in their limd sacrcune-nta llgea Jidelitatis, ov subord'ma.ie 
allegiances, yet there can not, or at least should not, be two or more co-ordi- 
nate allegiances by one person to several independent or absolute Princes; for 
that lawful Prince that hath the prior obligation of allegiance from his sub- 
ject can not lose that interest without his own consent, by his subject's resign- 
ing himself to the subjection of another." 

I refer to the case of the United States against Tully, 1st 
Gallison's Eeports, p. 253-5, to sliow that the statute does not, 
in terms, require that there shall be any personal violence or 
putting in fear to constitute robbery, provided the offence is 
committed animo furandi. 

1 also refer to the case of tlie United States vs. Jones, 3 
Washington C. C. R., p. 219, on the point of the justification 
given by a commission ; to the case of United States m. 
Hayward, 2 Gallison, 501 ; to the observations of Chancellor 
Kent, vol. L, p. 200, marginal page 191 ; to the United States 
vs. Palmer, 3 Wheaton, p. 634-, as to the manner in which our 
Courts deal with international questions respecting the recogni- 
tion of nationalities; to the case of the Santissima Trinidad, 
Kent's Commentaries, vol. I., p. 27, marginal page 25 ; to the 
case of Rose vs. Hinely, 4 Cranch, 211. I refer to the latter 
case for the general doctrines therein contained on the propo- 
sition that although a parent or original Government may find 
the magnitude and power of the rebellion such as to induce or 
compel it to resort to warlike means of supj)ression, so as that 
toward neutral nations there will grow up such a state of 
authority as will compel the recognition by neutral nations of 
the rights of war and belligerents, that is not inconsistent with 



116 TRIAL OF THE OFFICERS AND CREW 

or in derogation of tlie general proposition that the parent Gov- 
ernment still maintains the sovereignty, and can enforce its 
municipal laws, by all those sanctions, against its rebellious 
subjects. In other words, that the flagrancy of civil war, 
which gives rise to the aspect and draws after it the conse- 
quences ot war, does not destroy either the duty of allegiance 
or the power of punishing any infraction of law which the 
rebels may be guilty of, either in reference to the principal 
crime of treason, or in reference to any other violation of mu- 
nicipal rights. 

1 also ask your honors' attention to a recent ch:irge of 
Judge Sprague, to the Grand Jury in the Massachusetts Dis- 
trict, in reference to the crime of piracy. 

On the question of jurisdiction, I refer to the case of the 
United States vs. Hicks, decided in this Court. 

I refer to the case of the Mariana Flora, to show that the 
arrest of a pirate at sea arises under a general principle of the 
law of nations, which authorizes either a public or a private ves- 
sel to make the arrest. It is analogous to the common-law arrest 
of a felon. The point in the case of the Mariana Flora is, that 
any public or private vessel has a right to arrest a piratical 
vessel at sea and bring it in. It differs in that respect from the 
authority to arrest a slaver. 

On the general question of the ingredients of robbery, I 
refer to Archbold's Criminal Practice and Pleadings, 2 vol., p. 
507, marginal pages 417, 510, 526. 

In ])olitical connections I shall have occasion to refer to the 
Constitution of the United States and to the Articles of the 
Confederation, to the Virginia and Kentucky resolutions, and 
the answers of the other States of the Union, which will be 
found collected in Ellett's Debates, vol. 4, pages 528 to 545. 

I may refer also to Mr. Pinckney's speech in the Conven- 
tion of South Carolina which adopted the Constitution, same 
volume, p. ti31 ; to the fornial ratifications of the Constitution 
by the different States of the Union, same volume, p. 318 ; and 
I may have occasion to refer to Grotius in connection with the 
discussion of the general state of war. The citations will be — 
book 1st, chap. 1, sees. 1 and 2; chap. 3, sees. 1 and 4; and 
chap. 4, sec. 1. 



OF THE SCHOONER SAVANNAH. 117 



MR. LOED'S ARGUMENT. 



Mr. Lord, of connsel for the defence, said : 

May it please your honors,' — The distribution of duties 
which counsel for tlie defence have made among them- 
selves is, that I shall briefly present the propositions of law, 
somewhat irrespective of the wide political range which my 
friends seem to think is to be involved. I shall not pur- 
sue even the field which Mr. Larocqne has opened, knowing 
that he has cultivated it to a far greater decree than I have, 
and therefore I will leave it to him to till. My friend, Mr. 
Brady, will address the Jury on any questions of fact that 
may be supposed to be involved. 

Before I enter upon the discussion, and with the view that 
this case may be relieved from one prejudice which probably 
every man has felt on first hearing of it, I beg leave to set our- 
selves all right on the idea that there is something different in 
a private armed ship from a public armed vessel, in the law, 
and in the view of the people of the country. I desire to read 
on that subject a letter from Mr. Mai'cy to the Count de Sar- 
tiges. 

Mr. Lord read the letter, and continued : 

Therefore in this discussion, so far from a private armed 
vesstil being regarded with disfavor, it is regarded, and has to 
be regarded, witii all the favor which would belong to it as a 
regularly commissioned cruiser, belonging to the State, and not 
to the individual. 

I now apptoach, with all the brevity due to your valuable 
time, the question of jurisdiction. It seems to me to be very 
clear indeed that after Harleston and the crew, of the Savannah 
were taken by the Perry, he was confined »s a prisoner, as one 
of a crew of a piratical vessel, for an act charged as piratical, 
on board the United States ship-of-war Minnesota, by order of 
its commander. That Harleston was taken by the said com- 
mander into the District of Virginia, within a marine league 
of its shores, where the said ship remained ; and the said 
Harleston and the other prisoners could have been there 
landed and detained for trial. If the facts are so, the Circuit 
Court of this District has no jurisdiction, and the prisoners 
should be acquitted. 

The evidence of our friend, Commodore Stringham, on that 
subject, leaves us no doubt as to the character of the arrest. 
After seeing the Perry close in to Charleston, she having been 



118 TRIAL OF THE OFFICERS AND CREW 

ordered by him to cruise further off, and lie, wondering what 
she was doing there — he says : 

"She hailed us and informed us she had captured a piratical vessel. The 
vessel was half a mile astern. Captain Parrot, of the Perry, came and made 
to me a report of what had taken place. I ordered him to send the prisoners 
on board, and I sent a few men on board the Savannah to take charge of her 
during the night. The vessels were then anchored. Next morning I made 
arrangements to put a prize crew on board the Savannah and send her to 
New York, and I dii'ected the Captain of the Joseph to take passage in her. 
I took the prisoners from the Perry, and directed the Perry to proceed," &c. 

Again he testifies : 

" Q- What was your object in transferring the prisoners from the Perry 
to the Minnesota? 

"J. Sending them to a Northern port. The port of New York was the 
port I had in my mind to send them to, in the first ship from the station." 

The prisoners, thus taken from a piratical Tcssel, he determ- 
ined 10 carry to Norfolk, and to send them thence to the 
IS^orth for trial, 

ISTow, if jour honors please, my learned friend (Mr. Evarts) 
seems to say that there is no authority in law for a United 
States vessel to arrest pirates at sea ; but if you will read the 
President's proclamation of 19th June you will find that he 
speaks of dealing with the persons who may be taken on board 
private armed ships as pirates. I will then ask to direct your 
attention to the Act of 1819 (3d Yol. Statutes, p. 510), where 
the President is authorized to employ public armed vessels to 
arrest offenders against that law. Therefore the capture of the 
prize was not only a part of the general law of nations, but it 
was particularly a thing which .the commanders of ships of the 
United States were charged by the proclamation of the Presi- 
dent, and by Act of Congress, to do. 

I now approach the other question, as to where these pris- 
oners were apprehended, or into what District they were first 
brought. That they were apprehended by a warrant from the 
United States Commissioner in New York, is not in dispute. 
The question, however, is, where they were first brought. If 
an officer having them in charge could anchor his vessel at 
Baltimore, and then at Philadelphia, and then bring his pris- 
oners to New York, it would be putting the law entirely in his 
hands and dissipating all its force. In ordinary cases of crime 
the jurisdiction is local ; and that for many reasons. One is, 
that a man is to be tried by his peers — meaning those of his 
own neighborhood, — and that it is easier to procure evidence 
at the place where the ci-ime is committed. The law does not 
give to any man the power of assigning the place of trial. In 
the.'case of offences committed on the liigh seas, the law de- 



OF THE SCHOONER SAVANNAH. 119 

clares that the accused shall be tried in the District into which 
he is first broiiffht. 

Now, that tliese men were lield by Capt. Stringham for the 
purpose of being tried ns pirates, the evidence is clear. They 
were transferred from the Perry to the Minnesota, taken to the 
Norfolk station, and there kept in irons on board the Minne- 
sota till they wei-e transferred to the Harriet Lane. Could 
they have been detained there for trial? It might be an incon- 
venience if there was no Court. Ihey might have had to be 
detained for a long time, or Congress might pass some law 
varying the jurisdiction. But as the law stood, if these men 
could have been landed and detained for trial, then that was 
the District in which they were necessarily to be ti-ied. Can 
any one say that it was iv it as easy to have landed these men 
at Fortress Monroe, or at Hampton, as to transfer them to the 
Harriet Lane ? And could they not have been detained there ? 
You did not need a Court to detain them. The)' were taken by 
force, and might have been detained in the fortress till a tiial 
should be had. There was no difficulty in their being landed 
in Virginia ; and, moreover, there were in Westei-n Virginia 
lojal Courts, where tliey coiild be tried. 

Now, what is there that takes away the jurisdiction wliicli 
belongs to that part of the country and not to this? " Why," 
says Captain Stringham, '* I wanted to send them to New York." 
But had he any right to do so, when lie had actually brought 
them to that station where his ship belonged, and where he 
was bound to keep her unless he returned her to the cruising 
ground? liemember that iiis ship remained there some time 
before the transfer M^as made. They were detained as prison- 
ers there, and might as well have been detained on shore. 
Therefore, it seems to me, that unless the capturing officer, and 
not Congress, has the right to determine tiie place where the 
trial shall be had, these men were to be tried in the District 
of Virginia. 

Now, it is no answer to this to say that, whei'e a vessel is 
sailing along ihe shores of a District, a prisoner on boaid is not 
brought there in the proper sense of the word. The ship is 
not bound to stop and break up her voyage in order to have 
the Court designated where he is to be tried ; but where the 
ship comes into port — where she stops at a pta-t — I submit to 
your honors that this is the bringing contem])lated by the 
statute. 

1 now approach, if your honors please, the merits of this 
case. The indictment is founded on two sections of the Crimes 
Act, originally two separae and very distinct statutes'. It is 
the eighth section which makes robbery on the high seas pi- 
racy. That emljraces the first five counts of the indictment, 
which • are varied in mere circumstances. The remaining 



120 TKIAL OF THE OFFICERS AND GREW 

counts rest on the transcript into the legislation of this conn- 
try, from the Act of 11 and 12 William III., to the effect, sub- 
stantially, that if any citizen of the United States shall, under 
color of a commission from any foreign Prince or State, or 
under pretence of authority from any otber person, commit 
acts of hostility against the United States, or the citizens 
thereof, that shall be piracy. In the argument which I shall 
address to your honors I will beg leave to characterize the first 
as piracy by the laws of nations, and. the second as statutory 
piracy. But, before I discuss that subject, permit me to 
say that, as to eight of these prisoners, it is conceded that 
they do not come under that section, as the evidence for the 
prosecution shows that they were not citizens of the United 
States. So that, as to these eight, uiiltss they are adjudged 
pirates under the eighth section, they must be acquitted, if 
they can justify themselves under the c >mmission. 

Judge Nelson : Then the other four, you say, can only be 
convicted under the ninth section ? 

Mr. Lord: Yes ; that is the statutory process, if I may be 
permitted to give it that name. 

The act is charged as an act of robbery, not as an act of 
treason. It is not alleged to have been done treasonably. If 
the prosecution wanted to give it that character, they must 
have alleged it to be treason. They must have alleged that 
this act, done on the high seas, was done treasonably, traitor- 
ously, and therefore piratically. They have alleged no such 
thing. I take pleasure in saying that the District Attorney, 
in opening this case, did it with great fairness, and disavowed 
any idea of introducing treason into the case. There are many 
reasons why, if that were pretended, this whole trial should 
stop. The requisites of a prosecution for treason have not 
been, in any degree, complied with. The charge is robbery. 
It may be charged as done piratically, involving animus fu- 
randi. L -t us see, for an instant, what piratical is. Piracy 
is, by all definitions, a crime against all nations. It enters into 
every description of a pirate that he is hostis humani generis. 
That is the common-law idea of piracy. It is not a political 
heresy that will make piracy. It is not a political conformity 
that will always exempt from the charge of piracy. For in- 
stance, if the officer of a Government vessel, with the most full 
and complete commission, such as my friend Commodore 
Stringham had, should invade a ship at sea, and should, under 
pretence of capture, take jewels and secrete them, not bring- 
ing them in for adjudication, he would be a pirate, because, 
thouuli he heid a commission, he did the act anitno furandi, 
— did it out of the jurisdiction of any particular country, — did. 
it against the great principles of civilization and humanity. 

Again, if a commissioned vessel hails a p>rivate ship, and, 



OF THE SCHOONER SAVANNAH. 121 

on the idea that she is a subject of prize, captures her, and it 
turns out that that capture is illegal and unwarranted, that 
fact does not make the act piracy. Although the act might be 
ever so irregular — although it might subject the officer to the 
severest damages for trespass — yet it is not piratical, and the 
officer is not to be hung at the yard-arm because he mistakes a 
question of law. Your honors therefore see how utterly it 
enters into the whole subject that the thing shall be done 
animo fura7idi, piratically, as against tlie general law of na- 
tions and the sense of right of the civilized world. 

Well, now, we are at once struck with this consideration : 
Suppose the act is regarded as not piratical by millions of 
people having civilized institutions, having Courts of Justice, 
giving every opportunity for a trial of the question of forfeit- 
ure or no forfeiture — why, it shocks the moral sense to say that 
that is done animo furandi^ that it is a theft and a robbery, and 
that the man who does it is an enemy to the human race. 
Carry the idea a little further, and you find that the commis- 
sion under which a man acts in seizing a vessel with a view of 
bringing it in as a prize is regarded by all the great commer- 
cial nations of the world as regular, and that the act is regarded 
not as a piratical, but as a belligerent act. Does it not shock 
the very elements of justice to have it supposed that in such a 
case the man acting under the commission, and within its 
powers, is to be deemed an enemy of the whole human race, 
while all the human race, except the jDower which seeks to 
subject him to punishment, says the act is not piratical? 

!Now, upon this subject my learned friends have cited many 
authorities, which all bear on the effect of what should give 
validity to the transfer of captured property under the circum- 
stances of I'ebellions in States. Now I beg leave, at the outset 
of the consideration of this case, to say that the question of 
j)assing title to property is a thing entirely different from the 
question of hanging a man for committing a crime. In the 
first place, look at the numerous acts of trespass which are com- 
mitted on the high seas by vessels of q.\qv^ nation. The books 
are full of cases of marine trespass, and of damages against 
captors for their irregularities ; but are the authorities which 
bear upon that subject, which is a mere question of prop- 
erty — a question of title — of the mere transfer of title — are 
they authorities wiiich decide the question that a man should 
be iianged if he mistakes the law, ur if he acts under the 
impulse of a wrong judgment as to the sovereign which he 
should serve? I would call your attention to the case of Klin- 
tock, reported in the 5th of Wheaton, where the Court say that 
they will not regai'd the commission of General Aubrey as 
sutficient to give title to the projDerty, "although it might be 
sufficient to defend him from a charge of piracy." I also refer 



122 TRIAL OF THE OFFICERS AND CREW 

to PhilHmore on International Law, vol. 3, p. 319, [Counsel 
read i'rom tlie authority.] 

J^ow, under what circumstances was this done? And in 
the discussion I give to this question I am entirely tree from 
the necessity of considering how the Government of this coun- 
try shall regard the seceded States, — as having a Government, 
or not. I am under the law of nations, because this act which 
I am now discussing, of robbery on the high seas, was evi- 
dently a transcript of the law of nations upon the subject of 
piracy. What are the undeniable facts? — the facts about 
which, in this case, there is not any dispute, either in this 
country or in the whole world — about which there is but one 
opiniitn — what are they ? At the time the crew of the Savan- 
nah shipped for this cruise, and at the time of the capture of 
the Joseph, the authorities of the State of South Carolina (for 
the State of South Carolina had an organization from its be- 
ginning, as a part of this country, and, as a government, was 
well known to the Government of the United States) — the au- 
thorities of the State of South C.irolina, where the Savannah 
was fitted out and the crew resided, had become parties to a 
confederation of others of tlie United States. Now it is im- 
mateiiul to me, in the liuht in which I view this case, whether 
that was politically right or not — whether it was legally right 
or not — whether this country could look at it as a source of 
title to property or not ; the fact is there, that a State — one of 
the origmal, recognized States of the Union — united itself, un- 
der an assumption ot* authority, revolutionary if you please, 
with other similar States, and formed a lengue and a Govern- 
ment. That fact is undoubtedly so. Under such confedera- 
tion a Government, in fact, existed, and exercised, in fact, the 
powers of civil and military Government over the territories 
and peoples of those States, or a principal part of them. Here 
we have eleven recognized States, doing, if you please, an 
illegal thing, when you come to submit it to the just principles 
of law. They form a league, — against an Act of Congress, — 
but they do form a league, and do constitute a Government; 
and this Government takts possession ()f a territory of some ten 
millions of people, all of whom submit to it. It maintains the 
Government in its domestic character of States, and originates 
a Government for its foreign relations. It assumes to make 
war, and declares war. The President's proclamation says 
that the said Confederated States had in fact declared war 
against the United States of America, and were openly prose- 
cuting the same with large military forces, under the military 
and civil organization of a Government ; and had assumed, 
and were in the exercise of, the power of issuing commissions 
to private armed ships to make captures of the property of 
the United States, and the citizens thereof, as j^rize of war, and 



OF THE SCHOONEE SAVANNAH. 123 

to send them into Court for adjudication as such. Now, all 
tliat is beyond any doubt; and is it possible that it can be con- 
tended that an act of that vast extent, of that wide publicity 
and great power, should fail even to justify the killing of a 
chicken, without charge of petty larceny ? Does it not shock 
the common sense of mankind that, in the case of men dwell- 
ing tliete, and acting in subordination to the existing Govern- 
ment (you cannot say whether volunt irily or not), for every 
shot fired and man kdled you could have a trial for murder ; 
that for every horse shot you coidd have an action of tri)ver ; 
and for every trespass you could have an action of trespass ? 
This practically shocks us. How is it in view of the doctrine 
of hostis liummii generis f Here are ten millions of people 
doing acts which, if done only by three or four, would be mur- 
ders and treasons. But justice must be equah If required to 
execute justice upon three or four, you are bound to execute 
it on tens of millions? Why, that is the very thing which 
publicists tell us constitutes civil war. A civil war is always 
a rebellion when it begins. In the first instance it commences 
with a few individuals, — the Catalines of the country ; but 
when it gets to be formed, so that a large force is collected, 
and, instead of the Courts of Justice before existing, it substi- 
tutes Courts of its own, then comes up the doctrine of human- 
ity which belongs to the laws of war, — that yon can no longer 
speak of it as a rebellion. In the judgments of publicists 
when a rebellion gets to that head that it represents States, 
and parts of a nation, humanity stops the idea of private jus- 
tice, and it goes upon the principle of public and international 
law. That will be found elaborately stated in Yattel ; but I 
do not intend to troul)le you with any lengthened reading of 
citations. I refer to the 18th chap, on the subject of civil 
war, page \ 24 : 

"When a party is formed in a State, who no longer obey the sovereign, 
and are possessed of sufficient force to oppose him; or when, in a Republic, 
the nation is divided into two opposite factions, and both sides take up arms, — 
this is called a civil war. Some writers confine this term to a just insurrec- 
tion of the subjects against their sovereign, to distinguish that lawful resist- 
ance from rebellion, which is an open and unjust resistance. But what 
appellation will they give to a war which arises in a Republic torn by two 
factions, or in a Monarchy, between two competitors for the crown? Custom 
appropriates the term of ' civil war ' to every war between the members of 
one and the same political society. If it be between the part of the citizens, 
on the one side, and the sovereign, with those who continue in obedience to 
him, on the other, — provided the malcontents have any reason for taking up 
arms, nothing further is required to entitle such disturbance to the name of 
civil war, and not rehellion. This latter term is applied only to such an 
insurrection against lawful authority as is void of all appearance of justice. 
The sovereign, indeed, never fails to bestow the appellation of rebels on all 
such of his subjects as openly resist him ; but, when the latter have acquired 
sufficient strength to give hina effectual opposition, and to oblige him to carry 
on the war against them according to the established rules, he must necessa- 
rily submit to the use of the term ' civil war.' " 



124 TRIAL OF THE OFFICERS AND CREW 

The moment tlie term "civil war" comes np, tbe idea of 
punishing, as rebellion or as pirac}', the capture of a vessel, is an 
abuse of justice ; and it is not only an abuse of justice, but it 
is ati abuse of the fact, to say that those who are large enough 
to be a nation are to be considered as the enemies of all na- 
tions, because they undertake to make civil war. The point is 
not founded upon any technical considerations ; it is founded 
upon the great doctrines of humanity and civilization. Be- 
cause, what is to be the end of it ? If we hang twelve men, 
they hang one hundred and fifty-six. If we treat them as 
rebels, why they treat our captured forces as these rebels are 
treated. You bring on a war without any civilizing rules. 
You bring in a war of worse than Indian barbarity. You 
bring in a war which can know nothing except bloodshed, in 
battle or upon the block. This is not a technical notion. It 
is that, when civil war is found to exist (and that altogether 
comes from the magnitude of the opposition), then the rules of 
war apply, as much as in any public war, so far as to protect 
the individuals acting under them. What would be said if 
you should take a gi-ntleman who was made prisoner at Fort 
Hatteras, and try him for treason, and hang him? What 
would be said in this country, or in Europe, — what would be 
said anywhere, in the present or in future ages, — as to an act 
like that? Well, why not? Because justice must be equal. 
If you do it to one, you must do it to all. If you do it to all, 
you carry on an extermination of the human race, against all 
the principles which can animate a Court of Justice, or find a 
seat in the human bosom. Therefore, if we have the fact of 
civil war, we have the rules of war introduced. 

Now, is this a civil war? I do not ask the question of how 
this country simply should regard it; but on the question in a 
Criminal Court, as to whether a civil war exists so as to give 
protection to those who act on one side of it, I have the con- 
current judgments of the Courts. Judge Dunlop, in the case 
of the Tropic Wind, says there can be no blockade except in a 
case of war; that this is a civil war, and therefore there is a 
blockade. Judge Cadwalader says this is a civil war, and in 
civil war you may make captures ; and Judge Betts, in a vastly 
profitable judgment, delivered in the other room, confiscating 
millions of property of Union men in the South, says that this 
is civil war. Now, if the Government of the United States for- 
feits the property of persons residing in these seceded States, 
without the formality of a trial for treason, because it is simply 
enemy's property, with what pretence can tliey set up the pi-in- 
ciple that they will not treat them as enemies? They will treat 
them as enemies, for the purpose of confiscation, and not as 
enemies, but as traitors and pirates, for the purpose of execu- 
tion ? . Why, it is a glaring inconsistency. It strikes us off 



OF THE SCHOONER SAVANNAH. 125 

our feet as a people fit to be looked at bj any impartial or 
rational person, in political jurisprudence. 

We submit, therefore, that there was a civil war. Then 
what was the taking of the Joseph ? I now pass by the Savan- 
nah's commission tor a moment. The capture of the Joseph 
was in this way : The Josepli was approached by the Savan- 
nah, and her Captain ordered on board. I make no question 
about its being a taking by force; I make no question but that, 
if it was done piratically, there was force enough to make it 
piratical. But when asked. Why do yon do it'i Captain Ba- 
ker replied, "I take this by authority of the Confederated 
States. I am sorry for it ; but you make war upon us, and we 
have, in retaliation, to make war upon you." The vessel is 
taken; nothing is removed from her; and she is sent in as a 
prize, and reaches Georgetown. Nothiiig is then taken from 
her, but she is proceeded ag:dnst in Court, and men are exam- 
ined there as to the vessel, just as fairly, and probably just as 
good men, as have been examined in the other ro(jm. The 
question is tried. It is an undeniable case that, if this is a 
civil war, they having declared war, the vessel belongs to a 
belligerent, and she is taken, condemned and sold, according to 
the laws which have dominion over that country — a proceeding 
(erroneous as it may be in the ultimate object of it) according 
to all the course of every civilized country. And yet, we are 
told, that is piratical ! I submit that this cannot be so. We 
cannot, with any approach to consistency, hold that we can 
treat them both as enemies and rebels at the same time. Not 
so. Treat them as rebels, and confiscate the property by due 
course of law, and you can get nothing; because it is a singu- 
lar thing that in this country there is no such thing as forteit- 
ure for treason. You cannot forfeit the chattels, but only the 
land, and that for life ; and as the penalty of treason is death, 
leaving no life estate for the forfeiture to act on, there is, prac- 
tically, no forfeiture for treason. When these men come and 
say, we have taken this pro})erty as an enemy, you treat them 
as rebels. It seems to me this is indulo-insi; a private ani- 
mosity ; it is indulging a fanatical principle, an unworthy prin- 
ciple, that cannot be carried out without disregarding the great 
rules that belong to civilized nations with regai'd to war. 

Again, if your honors please, piracy and robbery always 
have secrecy about them. The open robber, who meets you in 
noonday, yet secretes the plunder. He does not go into a 
Court of Justice and say, " Behold what I have taken ! here 
are the jewels, and here the gold; adjudge if they are lawful 
prize ! " The robber never does that. Here there is nothing 
secret or furtive. The vessel and cargo are taken before a 
Coui-t and adjudicated to be a prize. Let us take a case which, 



126 TRIAL OF THE OFFICERS AND CREW 

althongli unlikely to happen, might occur. A man goes from 
seceding Virginia with an execution to levy upon a man in loyal 
Virginia. The man there says, "You are superseded ; you liave 
no autl:ority;" and it is tried there. The Court hold that 
the execution and levy from the seceded State does not pass 
the property; but would it he po>sible to say, there was any- 
thing furtive in the taking on the part of the officer? There 
is nothing more plain, in criminal law, than that, if you act 
under color of authority, although you may be ruined i)y suits 
in trespass, yet you are not to be subjected to punishment as 
having done what was felonious. 

But there is one other consideration which I would present 
on the subject of piracy : it is robbery upon the high seas, — 
an act hosiis humani generis. It is made an offence in this 
country, because it is an offence against the law of nations ; 
for this is a question on which civilized nations do not differ. 
All the nations of Euroi)e look on at this controversy. Here 
comes a man that the District Attorney of New York says is 
hodis humani generis. What says the gi'eat commercial nation 
of Great Britain? We do not treat you as pirates, but as bel- 
ligerents. We do not recognize your independence, because 
you have not acliieved it ; but when the question arises, whether 
we shall consider you as pirates, whom we, in common with all 
other nations, have a right to take up, we say it is no such 
thing. Judge Sprague says, that they say it is no such thing. 
So, too. with France. Here is the authority of a great Empire 
that this is not a piratical but a belligerent act. And again, 
Spain reiterates the same decision. Suppose I could bring the 
authority of the highest Court in Great Britain that, just in such 
a case as this, the Court acquitted a man of piracy ; and suppose 
I could add to that a similar judgment under the law of France ; 
and bring a case from the Courts in Spain, deciding the question 
in the same way ; and so, too, from Holland, — and when I come 
down to JSew York, the District Attorney says the man is 
Jiostis humani generis! Is it not absurd? If piracy be a 
crime against public law, it is so. The recognition and the 
application of the doctrines of common humanity to this great 
struggle, — that they should l)e regarded as the determining 
point ujDon this great question — it seems to me your honors will 
never hesitate in admitting. I, therefore, present this point, 
and if your honors w-ill permit me, after this discursive argu- 
mentation, I will read it as 1 think it ought to be decided in 
law : 

"There is evidence that at the time of the crew of the Savannah shipping 
for the cruise, and at the time of the capture of the Joseph, the authorities of 
the State of South Carolina had become parties to a confederation of others 
of the United States of America, named in the President's 'proclamation. 



OF THE SCHOONER SAVANNAH. 127 

That under such confederation a Government, in fact, existed; and exer- 
cised, in fact, the powers of civil and military Government over the territories 
and people of those States, or the principal part thereof. That the said Con- 
federate States had, in fact, declared war against the United States of America, 
and were openly prosecuting the same, with large military forces, and the 
military and civil organization of a Government; and had assumed, and were 
in the exercise of, the power of issuing commissions to private armed ships, to 
make captures of the property of the United States, and the citizens thereof, 
as prize of war, and to send them into poi t for adjudication as such. And 
that a civil war thus, in fact, existed. That the taking of the Joseph was 
under such authority of the Confederate States, and in the name of prize of 
w^ar, and with the purpose of having the same adjudged by a Prize Court in 
South Carolina, or some other of the said Confederate States. And, if the 
facts are so found, then the taking of the Joseph was not piratical, under the 
eighth section of the Act of 1790, and the prisoners must be acquitted from 
the charge under this count." 

Now T approach the case of the commission. I suppose 
that the District Attorney, by not proving the commission as a 
part of the charge, is not entitled to convict any of these 
prisoners mider the commission whicli is shown. He does not 
prove his case ; and it is no matter what we have proved, — he is 
not entitled to a conviction under evidence which he does not 
bring. 

But now I take up the matter of the commission, and the 
consideration of 'piracy hy statute, under the 9th section. If 
your honors please, it is right that I should give some history 
of that 9th section's coming into the law of piracy. The 8th 
section yuu will find to be the law of piracy, by the law of 
nations. All nations hold that to be piracy which is there 
described. But, in the ILth and 12th of William HI,, this state 
of things existed : King James had abdicated the Crown of 
England twelve years before ; William and Mary reigned to- 
gether six years ; William survived her. Here, then, w^as a 
Government in England, with a pretender, whom the English 
Government had declared^was an alien from the Throne ; they 
had banished him. But he was at the Court of St. Germain, 
in France ; and there, through his instrumentality, privateers 
were fitted out against English commerce. Then this Act was 
enacted which I will now mention. You find it in Haickins' 
Pleas of the Crown, under the title Piracy, book I., chap. 37, 
sec. 7 : 

" It being also doubted by many eminent civilians whether, during the 
Revolution, the persons who had captured English vessels, by virtue of com- 
missions granted by James II., at his Court at St. Germain, after his abdi- 
cation of the Throne of England, could be deemed pirates, the granlor still 
having, as it was contended, the right of war in him, it is enacted — 11 & 12 
Wm. III., c. 7, s. 8 — 'That if any of His Majesty's natural-born subjects, or 
denizens of this Kingdom, shall commit any piracy or robbery, or any act of 
hostility against others, His Majesty's subjects, upon the sea, under color of 
any commission from any foreign Prince or State, or pretence of authority 



128 TRIAL OF THE OFFICEKS AND CKEW 

from any person whatsoever, such oifender or offenders, and every of them, 
shall be deemed, adjudged, and taken to be pirates, felons, and robbers; and 
they, and every of them, being duly convicted thereof, according to this Act, 
or the afoiesaid statute of King Henry VIII., shall have and suffer such pains 
of death, loss of lands, goods, and chattels, as pirates, felons, and robbers upon 
the seas ought to have and suffer.' " 

When an Act of Congress, declaring the crime of piracy, 
was enacted, in 1790, it is perfectly apparent that those who 
drew up the Act were acquainted with Hawkins' Pleas, con- 
taining the 8th section, which is the recognized law of piracy 
by all nations, and from that book, then, took in this 9tli sec- 
tion ; because there was no exigency in our Government to call 
for it, and no reason for its introduction, except that it was 
found in a book familiar to those who were legislating for this 
country. In regard to the Act, there are some peculiarities 
which are very striking, and which bear strongly on this sub- 
ject. The firs-t is the fact that a commission, although from a 
foreign State, taken by a British subject or denizen of England, 
and committed against British commerce, protected the party 
against the charge of piracy, — because the thing was taken as 
prize, and for adjudication according to the principles of the 
laws of nations, for which national action the nation which took 
it was re-ponsible. But, in the case and condition of James II., 
the English declared that he was no longer of England, — they 
declared him fallen from the Crown, and a foreigner. He had 
no dominions, and no place where the poor man could hold a 
Prize Court ; and, if he could authorize a capture, there was no 
Court to adjudicate upon it; there was no sovereign to be 
responsible for the action of the Prize Court, lie was a King 
without responsibility, and without the power of having Courts 
of Adjudication ; and it was a necessity arising in the history of 
English law that that kind of action should be treated as 
piratical. The English adopted tha^ therefore, as the statute 
piracy. I refer j^our honors to Phillimore's International Law 
(vol. III., page 31^8), where all the discussion and reasons are 
contained; and they all are reasons applicable to a Prince with- 
out dominions, without Courts, without a country; and to a 
foreign Piince, in regard to English property and English 
subjects. 

Now, then, let us see how these men stand. Under the 8th 
section, those men who were not citizens of the United states, 
are, of course, protected by a commission from a Government 
de facto. Their taking was not animo furandi, because there 
was a commission. The very enactment of the statute of Wil- 
liam III. was upon the basis that it was not piracy where there 
was a commission, even of this questionable sort. 

I say, then, in my third point, that if the facts are found 



OF THE SCIIOONEIi SAVANNAH. 129 

as supposed in the preceding point, and if it also appears that 
the commission from the Confederated States, or the President 
thereof, had been issued for the Savannali, and that the cap- 
ture was made under color thereof, then, as to tlie prisoners 
shown not to be citizens of the United States, the takinir of the 
Joseph was not piratical under the eighth section of the Act 
of 1790, — -Jirst^ because it was undercolor of authority ; nor, 
second^ was it piratical under the ninth section, because that 
only applies to citizens of the United States ; and the prisoners, 
Del Carno, &c., must be acquitted under the ninth as well as 
under the eighth section. 

But now we come to the American citizens who took that 
commission, and we are to see with some accuracy how tlie 
case stands as to them, — which involves two questions : One 
is, what kind of " other person " is embraced in that law ? 
And the other is, whether this indictment is supported as un- 
der a commission from any person whatever? Let me call 
your attention to the form of the indictment in this last count 
of the declaration. They all run in this way : that these per- 
sons, "being citizens, did, on pretence of authority from a j)^^'- 
son, to ivif, one Jefferson Davis,^^ &c. That is all that is said 
as to the pretence. Now there is no lack of skill in this indict- 
ment. The pleader under this indictment was surrounded with 
difficulties very grave indeed. He had the commission. If he 
had described it as a commission from certain foreign States, 
namely, South Carolina, Georgia, &c., the Government woukl 
have recognized the existence of those States in the most formal 
manner and by action of the most formal kind. If he said 
"Jefferson Davis, President of certain Confederate States," 
that would be simply that the pretence of authoriiy was a pre- 
tence of authority from those States, and the same consequence 
would result. Well, what could he do? The only way in 
which he could make this stand at all M-as by saying that it is 
an authority from Jetfersun Davis, as an individual. That is 
the meaning of this allegation. 

Now, then, under the facts already stated, including now 
the commission and the action under it, the taking of the 
Joseph was not piratical, under the ninth section, because the 
commission was Irom the Confederate States, and not from "a 
person, to wit, one Jefferson Davis," as described in the indict- 
ment. Now that leads me to a consideration of this commis- 
sion. We had something a little like it here yesterday, when 
the warrant issued l)y Mr. Buchanan Henry was given in evi- 
.dence for the arrest of these men. I suppose I would be 
charged with ridicule in the last degree if 1 said they were 
arrested by the authority of Buchanan Henry, or under pre- 
tence of anthoiitj'' irom Buchanan Henry ; yet the wan ant 
9 



130 TKIAL OF THE OFFICERS AJSTD CEEW 

ran in the name of Buchanan Henry. Now let us see whether 
this commission suj)ports the allegation of its being_a commis- 
sion from a private person. The allegation is, that the capture 
was made under pretence of authority from one Jeiferson Da- 
vis. The commission runs just as the President's commission 
to your honors : 

"JEFFERSON DAVIS, 

"president of the confederate states of AMERICA. 

" To all wlbo shall see these presents, greeting : — Know ye, that by virtue 
of the power vested in me by law, I have commissioned, and do hereby com- 
mission, have authorized, and do hereby authorize, the schooner or vessel 
called the Savannah (more particularly described in the schedule hereunto 
annexed), whereof T. Harrison Baker is commander, to act as a private 
armed vessel in the service of the Confederate States, on the high seas, against 
the United States of America, their ships, vessels, goods, and effects, and those 
of her citizens, during the pendency of the war now existing between the said 
Confederate States and the said United States. 

" This commission to continue in force until revoked by the President of 
the Confederate States for the time being. 

" Schedule of description of the vessel : — Name, Schooner Savannah ; ton- 
nage, 5o|} tons ; armament, one large pivot gun and small arms ; number of 
crew, thirty. 

" Given under my hand and the seal of the Confederate States, at Mont- 
gomery, this 18th day of May, A. D. 1861. 

"JEFFERSON DAVIS. 

"By the President — R. Too.mbs, Secretary of State." 

Now I submit that, if they had framed an indictment for 
talving a commission under the King of England, and it had 
been under the Government of England as a foreign State, 
without naming the individual, such a commission as this 
would sustain it. If they had indicted as taking a commission 
out under any foreign State or nation, a commission in this 
way would have sustained that indictment ; because the officer 
is merely the authenticator of the instrument ; the authority is 
not liis, — it is not under his authority ; he is the mere ministe- 
rial officer, in fact, of the Government. 

Now I submit, that this taking cannot be held piratical, 
under the ninth section, on this indictment ; because it was a 
taking, not on pretence of authority from Jeiferson Davis, but 
under authority of the Confederate States, exercised b}^ Jeffer- 
son Davis. And, in a case of this kind, I must say that I con- 
sider it will prove the greatest Godsend to the Government, 
and to the prisoners on both sides who now anxiously await 
the result, if, without touching the other questions, this indict- 
ment shall fall to the ground on a mere technical point. 

That is one reason. Another reason is this : The Act is for 
taking vest^els under a commission from any foreign Prince or 
State, or on pretence of authority from any person. Now 



OF THE SCIIOONEK SAVANNAH. 131 

what is a foreign Prince or a foreign State? If yonr honors 
please, at the time this Act was enacted, within some three 
yei^rs of tlie United States coming together, is it conceivable 
that tlie thought entered into the heart of any man who had 
an^^thing to do with it that it was to take effect against any 
man acting imrler the authority of any of the States of this 
Union? The States all were authorized, under certain circum- 
stances, to have ships-of-war and to have armies. There was 
no telling what collision there might be ; and the idea that this 
Act, alnK)st a literal transcript from the English statute of 11 
and 12 William III., contemplated that punishment for acting 
nnder the authority of domestic persons, is inconceivable. 

In construing an Act so highly penal as this we must be 
very sure that we are not only within the letter, bnt within the 
very sj^iiit and contemplation, of the Act; and on you think 
that the framers of this Government gravely provided for the 
oft'ence of taking a commission under some of the persons act- 
ing as Governoi-, or in connection with the domestic institu- 
tions of this country ? I submit that the Act was intended to 
operate against foreign States and nations, and a foreign per- 
son ; and it is inconceivable that the Act should have been con- 
templated to embrace any such thing as is now brought np. I 
submit, therefore, as the third of my specifications under this 
j)oint, that Jefferson Davis was not a foreign j)erson, nor assum- 
ing the authority of a foreign Prince or Ruler. The statute 
was one against commissions under foreign authority of some 
kind or other, either Prince, or State, or person. 

But I now draw your attention to another feature of the 
statute, which seems to me equally decisive. This statute is 
transmitted to us from England, and that whicli was the design 
and exigency of its adoption theie is to bear with great, if not 
decisive, Ibrce, upon its construction here. We took it because 
they had it, and we took it, therefore, for reasons similar to 
theirs. Now what was the real difficulty there? It was this: 
that a Prince without dominion, a Prince having no Govern- 
ment ilefacto^ a mere nominal Prince, undertook to issue com- 
missions throughout the world against British commerce. 
Evils that are very manifest and plain, in regard to the law of 
prizes, apply to that case. The prizes could not be adjudicated 
in his Courts ; he had none. This was an enactment against 
Princes who had abdicated and were without dominion. Such 
things were common, as well in the time of William III. as 
since. Abdicated Princes very soon turn to be robbers, wdiose 
only object is to get re-established, and they are not scrupulous 
as to means. They stand as mere fictions, undertaking to 
exercise authority, with none of the responsibilities M^hicli 
belong to Pulers. How different it is with this Jefferson Davis ! 



132 TRIAL OF THE OFFICERS AND CREW 

I spealc now in no degree of liis merits, or as lessening that 
feeling which my fellow-citizens and I share alike npon the 
subject of this rebellion. But here is a man, not a nominal 
Prince or Ruler, but he is (if you please without right) Ruler of 
ten millions of people. Is this Act, Avhich is intended to meet 
the case of a man without people, or dominion, or force — with- 
out any thing but tlie name and claim of Ruler — to be applied 
to a man who represents (rightfully or wrongfully) a large frac- 
tion of a great nation? To say that every man who takes a 
commission (applying as well to civil as to military commis- 
sions), that any man who takes a commission, from him, is 
either a robber or a pirate — if on land, a robber, if on sea, a 
pirate — is unjust and unreasonable — contrary to every principle 
that governs the laws of nations. Patriotic vituperation may go 
far — patriotic spirit and feeling may go far — but there is a limit 
to every thing tliat is real. The human mind, as it seems to me, 
and the human heart, cannot go to the extent of the doctrine 
that tliey can be treated as robbei's who act under a Govern- 
ment extending de facto so far and doing de facto so many 
things throughout upon the principles of civilized warfare, and 
having a vast territory, and vast numbers of people acting as 
it dictates. It is p^erverting the law of piracy to apply it to a 
ease so entirely ditlerent. 

Now it comes back to the fact that this '* pretence of au- 
thority " was the authority of all those States. Those States, 
when tliey come back to the Union, if they ever do, will come 
back witli all their powers as original States. The Confedera- 
tion you may call illegal and improper, but it is a Confedera- 
tion de facto j its right may be questioned, but it is a de facto 
Government, with this gentleman presiding over it, and per- 
forming the duties which, as the Ruler of a great nation, de- 
volve upon him — bringing out armies by hundreds of thoueands, 
bringing out treasures by the million, — and yet you are to say 
it has no color of authority. It is idle, it seems to me, to say 
that a man situated as Jefferson Davis is was intended by a 
law against a mere nominal Prince. I submit that because 
Jeff^'son Davis was actually the Chief cf a Confederation of 
States, not foreign, exercising actual power and government 
over large territories, with a large population, under an organ- 
ized Government, having Courts within its territories for the 
adjudication of captures, — that upon each of these grounds 
Harleston, as M'ell as the others who are citizens, should be 
acquitted under the 9th section. 

That is all the argument which I address particularly ; and 
I beg leave to read two or three general propositions on the 
construction of the law in this matter : 

I. — ^The recognition, by the great commercial nations of the 



OF THE SCHOONER SAVANNAH. 133 

world, of the Confederate States as belligerents, and not pirates 
and robbers, prevents the captures under authority from 
being held piratical under the law of nations. 

II. — 1. The ninth section of the Act of 1790 has not in view 
any application to the States then recently united as the United 
States of America, or to the persons having authority de facto 
in them. 

2. That section had in view foreign Princes and States, and 
foreign authority only. 

3. The authority from any person in that section has 
reference to persons without the possession, in fact, of terri- 
tory. 

If your honors please, I have endeavored, so far as it was 
possible, to abbreviate wliat I have Lad to say on this subject. 
It is a very interesting one, undoubtedlj^, not only to the legal 
student, but to all persons in the country. This war is a war 
to reclaim those States. To attempt to reclaim them by 
prosecutions for piracy, or b}^ acts of hostility which disregard 
them as having any form of society, — it seems to me that no 
rational evil could be greater. The idea that in a commercial 
city it is very offensive that there should be privateers, is a 
trifle. The navy can regulate that. Let them look more to the 
privateers that want to get out than to the prizes that want to 
come in, and that will be provided for. "We need not violate 
principles of law, or of humanity, or the common sense of the 
world, to produce an effect of that kind. We need to show 
that, in the midst of all this excitement and outcry against 
piracy — in the midst of a press that never names any of these 
people without calling them " pirates" — the men brought in 
always in chains, for the purpose of exciting public indignation 
against them and preventing their being treated as men of 
common rights and common interests with us — all which is 
very humiliating, it seems to me — in a Court of Justice no such 
feelings will be succumbed to. 

Certain I am that, where I stand, no such principles will be 
put in use. Justice will come — severe and stern, it may be — 
but it will be justice, with truth, and reason, and humanity, 
and political tenderness accompanying all its acts and all its 
judgments. 

Mi\ Larocque: If the Court please, I had hoped to be saved 
the necessity of addressing your honors upon these propositions 
of la\v ; but, in the distribution that has been made among the 
counsel, it has fallen to my lot to present the propositions in 
reference to which my opening was made, yesterday, to the 
Jury, and which will be adverted to by the counsel who, on 



134 TRIAL OF THE OFFICERS AND CREW 

our side, will close tlie case; and, simply, witliout detaining 
your honors, at this late hour, with any remarks upon them 
farther than the reading of some extracts from authorities I 
have collected, I will present the propositions, leaving them to 
the action of your honors, and to the remarks of my associate, 
who will close this case, after we have ascertained the direction 
it will take before the Jury. 

The first proposition I had stated, with reference to jurisdic- 
tion : " That the defendants, after their capture and confinement 
as criminals, for the acts charged in this indictment, having been 
taken within the District of Yirginia, on board the vessel on 
which they were so confined before being brought within the 
Sonthern District of New York, cannot be convicted under this 
indictment." 

In reference to that, there are a number of additional 
authorities that I will furnish to your honors. In the case of 
the United States vs. Charles A. Greiner, tried before Judge 
Cadwalader, in tlie Philadelphia District, the defendant had 
been arrested under a charge of treason committed in Georgia. 
It seems to have been understood, by the learned counsel on 
the other side, that the question of jurisdiction may be in- 
fluenced by the fact of whether there was any possibility of 
these prisoners being tried in Yirginia or not ; and it is in refer- 
ence to that point that I cite this case. Judge Cadwalader 
says : 

" The questions in this case are more important than difficult. On the 2cl 
of January last an aitillery company of the State of Georgia, mustered in 
military array, took Fort Pulaski, in that State, from the possession of the 
United States, without encountering any forcible resistance. They garrisoned 
the post for some time, and left it in the possession of the government of the 
State. The accused, a native of Philadelphia, where he has many connections, 
resides in Georgia. He was a member of this artillery company when it 
occcupied the fort, and, for aught that appears, may still be one of its mem- 
bers. He was net its commander. Whether he had any rank in it, or was 
only a private soldier, does not appear, and is, I think, unimportant. He is 
charged with treason in levying war against the United States. The overt 
act alleged is, that he participated, as one of this military company, in the 
capture of the fort, and in its detention until it was handed over to the per- 
manent occupation of the authorities of the State. 

"The primary question is. whether, if his guilt has been sufficiently- 
proved, I can commit him for trial, detain him in custody, or hold him to bail 
to answer the charge. The objection to my doing so is, that the offence was 
committe'd in the State of Georgia, wliere a Court of the United States can- 
not, at present, be held, and where, as the District Attorney admits, a q:>eedy 
trial cannot be had. The truth of this admission is of public notoriety. 

"The Constitution of the United States provides that in all criminal prose- 
cutions the accused shall enjoy the riglit to a speedy trial by a Jury of the 
State and District wherein the crime shall have t^een committed. The only 
statute which, if the Courts of the United States for the State of Georgia were 



OF THE SCHOONEK SAVANNAH. 135 

open, would authorize me to do more than hold this party to securitj^ of the 
peace, and for good behavior, is the 33d section of the Judiciary Act of the 
24th September, 1789. That section, after authorizing commitments, Sec, for 
trial, before any Court of the United States having cognizance of the 
oifence, provides that if the commitment is in a District other than that in 
which the offence is to be tried, it shall be the duty of the Judge of the Dis- 
trict where the delinquent is imprisoned scasonaldy to issue, and of the Mar- 
shal of the same District to execute, a wai-rant for the removal of the offender 
to the District in which the trial is to be had. The District Attorney of the 
United States does not ask me to issue such a warrant for this party's re- 
moval to Georgia for trial. Therefore I can do nothing under this Act of 
Congress. It does not authorize me to detain liini in custodj' to abide the 
ultimate result of possible future hostilities in Georgia, or to hold him to bail 
for trial in a Court there, of which the sessions have been interrupted, and 
are indefinitely postponed." 

Ill reference to the counts of the indictment founded upon 
the 8th section of the Act of 1790 and the Act of 1820, the 
propositions I have are these : 

" Second, That to convict the defendants, under either of the 
first five counts of the indictment, the Jury must have such 
evidence as would warrant a conviction for robbery if the acts 
proved had been performed on land. 

" Third, That the defendants cannot be convicted of robbery, 
in the capture of the Joseph, unless she was taken with a 
piratical and felonious intent. 

Fourth, That if the defendants, at the time of her capture, 
were acting under the commission in evidence, and, in good 
faitb, believed that such commission authorized her capture, they 
did not act with a piratical or felonious intent, and cannot be 
convicted under either of the first five counts in tlie indict- 
ment." 

There are one or two authorities I did not state yesterday, 
which I beg now to furnish, as some additional authorities have 
been lianded up on the other side : 

The Josefa Segunda, 5 Wheaton, 357. In tliis case Judge 
Livingston, says : 

"Was the General Arismendi a piratical cruiser? The Court thinks not. 
Among the exhibits is a copy of a couunission, which is all that in such a 
case can be expected, which afipcars to have been issued under the authority 
of the Government of Venezuela. This Republic is composed of the inhabit- 
ants of a portion of the dominions of Spain, in South America, which have 
been for some time, and still are, maintaining a contest for independence with 
the mother country. Although not acknowledged by our Government as an 
independent nation, it is well known that open war exists between them and 
His Catholic Majest)', in which the United States maintain strict neutrality. 
In this state of things, this Court cannot but respect the belligerent rights of 
both parties, and does not treat as pirates the cruisers of either so long as 
they act under and within the scope of their respective commissions." 



136 TRIAL OF THE OFFICERS AND CKEW 

In the United States vs. The Brig MaWk Adhel (2 Howard's 
U. S. Rep. 211), as to the Act of 1819, Judge Story (page 232) 
says : 

" Where the Act uses the word piratical, it does so in a general sense, — 
importing that the aggression is unauthorized by the law of nations, hostile 
in its character, wanton and cruel in its commission, and utterly without any 
sanction from any public authority or sovereign power. In short, it means 
that the act belongs to the class of offences which pirates are in the hihit of 
perpetrating, whether they do itfurpiuriJOxes of plunder, or purposes of hatred, 
o'evenge, or wanton ahuse of power. A pirate is deemed — and j)rop)erly deemed 
— HosTis nuMANi GENERIS. But whj is he so deemed? Because he commits 
hostilities upon the subjects and property of any or all nations, without any 
regard to right or duty, or any pretence of public authority. If he willfully 
sinks or destroys an innocent merchant ship, without any other object than 
to gratify his lawless appetite for mischief, it is just as much piratical aggres- 
sion, in the sense of the law of nations, and of the Act of Congress, as if he 
did it solely and exclusively for the sake of plunder, lucri causa. The law 
looks to it as an act of hostility; and, being committed by a vessel not com- 
missioned and engaged in lawful warfare, it treats it as the act of a pirate, and 
one who is emphatically hostis humani generis." 

Then upon the question that this commission is only by 
color of authority from an unrecognized power, and that the 
authority to grant such a commission is disputed, I refer to the 
case oi Davison, vs. Certain Seal Skins (2 Paine's C. C. R. 332), 
wldch was a case of salvage of property after a piracy alleged 
to have been committed by Louis Yernet, at Port St. Louis, in 
the Efistern Falkland Islands, by taking them fiom a vessel, — he 
wrongfully and iinlawfidly claiming and pretending to be 
Governor of the Islands, under Buenos Ayres. The Court 
says : 

"Robbery on the high seas is understood to be piracy by our law. The 
taking must he felonious. A commissioned cruiser, by exceeding his author- 
ity, is not thereby to be considered a pirate. It may be a marine trespass, 
but not an act of piracy, if the vessel is taken as a prize, unless taken felo- 
niously, and with intent to commit a robbery : the quo animo may be in- 
quired into. A p>irate is one who acts solely on his own authority, without 
any commission or authority from a, sovereign State, seizing by force and ap- 
propriating to himself, without discrimination, every vessel he meets with ; 
and hence pirates have always been compared to robbeis. The only differ- 
ence between them is that the sea is the theatre of action for the one, and the 
land for the other." 

By referring to this ca?e, pp. S34, 335, your honors will 
find that Buenos Ayres had no lawful jurisdiction over the 
islands, and that our Executive Government had so decided ; 
but Buenos Ayres avowed the acts of those claiming to act 
under her authority, and our Government discharged the pris- 
oners who had been captured as pirates, disclaiming, under those 
circumstances, to holcl them personally criminally responsible. 

The next proposition which I state is this : " That, by the 
public law of the world, the law of nations, and the laws of 



OF THE SCHOONER SAVANNAH. 13T 

war, the commission in evidence, supported by the proof in the 
case as to the color of authority under which it was issued, would 
afford adequate protection to the defendants against a convic- 
tion for piracy ; and being an authority emanating neither 
from a foreign Prince nor foreign State, nor from a person 
merely, the olfence charged in the last five counts of the indict- 
ment, is not within the purview of the 9th section of the Act of 
1790, and the defendants cannot be convicted under either of 
those counts, if they acted in good faith under that commis- 
&ion." 

1 refer your honors to the case of the Santissima Trinidad, 
7 Wheaton, 288, to the opinion of Judge Story, in which he 
says : 

" There is another ohjection urged against the admission of this vessel to 
the privileges and immunities of a public ship, which may as well be disposed 
of in connection with the question aheadj considered. It is, that Buenos 
Ayres has not yet been acknowledged as a sovereign independent Government, 
by the Executive or Legislature of the United States, and therefore is not 
entitled to have her ships-of-war recognized by our Courts as national ships. 
We have, in former cases, had occasion to express our opinion on this point. 
The Government of the United States has recognized the existence of a civil 
war between Sp'-in and her Colonies, and has avowed a determination to 
remain neutral between the parties, and to allow to each the same rights of 
asylum, and hospitality, and intercourse. Each party is, therefore, deemed 
by us a belligerent nation, having, so far as concerns us, the sovereign rights 
of war, and entitled to be respected in the exercise of those rights. We 
cannot interfere to the prejudice of either belligerent, without making our- 
selves a party to the contest and departing from the posture of neutrality. 
All captures made by each must be considered as having the same validity; 
and all the immunities which may be claimed by public ships in our ports, 
under the laws of nations, must be considered as equally the right of each, 
and as such must be recognized by our Courts of Justice, until Congress 
shall prescribe a different rule. This is the doctrine heretofore asserted by 
this Court, and we see no reason to depart from it." 

Your honors, by referring to the case of The Bello Corun- 
nes, 6 Wheaton, 152, will see the doctrine laid down distinctly, 
that acts may be piratical for all civil purposes which would 
not authorize the conviction of the perpetrators criminally as 
pirates ; e. g., a citizen of the United States, taking from a 
State at war with Spain a commission to cruise against that 
power, contrary to the 14th art. of the Spanish Treaty ; — and 
the Court held, in that case, that that would involve the con- 
sequences of a piracy, for the purpose of condenmation of prop- 
erty ; but it would not be criminal piracy, under either the 
law of nations or of the United States. 

On the general subject of privateers I had a reference to 
Yattel, but I do not think it necessary to read it, because the 
authorities on that sul)ject cover it so fully, 

I come now, if your honors please, to what my learned 



138 TRIAL OF THE OFFICERS AISTD CREW 

friend, wlieii he addressed tlie Court on the part of tlie Gov- 
ernment, has been pleased to call the political part of this case; 
and I have distinctly stated in my propositions what I contend- 
ed for on that subject. In the first place, that the Federal 
Executive Government, and the executive governments of the 
States, under the Constitution of the United States, each pos- 
sess the jurisdiction to decide whether their respective acts are 
within or exceed the limits of their respective constitutional 
powers, in cases of collision between them in their administra- 
tive acts, operating upon the public domain, or upon the State, 
or its citizens as a body politic. 

I shall, without stopping for any discussion, simply state 
the subordinate propositions by which I think that is estahlished, 
and give a reference to the authorities. 1 say, in the first place, 
as I said to tlie Jury, that citizens of the United States owe a 
divided allegiance, partly to the United States and partly to 
their respective States. They can commit treason against 
either ; for the State constitutions and laws define and punish 
trea-on against, the States, as the Constitution of tlie United 
States does treason against them. 

The Federal and State Governments are each supreme 
and sovereign within the limits of their respective jurisdictions 
under the Jj'ederal and State Constitutions ; each operates di- 
rectly upon the citizen, and each also operates as a check and 
restiietion upon the other, and upon the encroachments of the 
other, in seeking to extend beyond legitimate limits its jurisdic- 
tion over the citizen, or over the public domain common to 
botli. Now, if your honors please, in regard to that, I will 
very briefly refer you to what I rely upon. I refer, in the first 
place, to sections 2 and 3, of Article Gth, of the Constitution of 
the United States. 

" ^(?c. 2. This Constitution, and the laws of the United States, wJiich 
sJiall be made in 2nirsi(unce thereof, and all treaties made, or which shall be 
made, under the authorit}^ of the United States, shall be the supreme law 
of the land; and the Judges in eveiy State shall be bound thereby, anything 
in the constitution or laws of any State to the contrary notwithstanding. 

^^Sec.S. The Senators and Representatives before mentioned, and the 
members of the several State Legislatures, and all executive and judicial offi- 
cers, both of the United States and of the sevei'al States, shall be bound by 
oath or affirmation to support this Constitution ; but no religious test shall 
ever be required as a qualification to any office or public trust under the Uni- 
ted States." 

In the amendments to the Constitution of the United States, 
Articles 9 and 10, we find this language : 

" The enumeration in the Constitution of certain rights, shall not be con- 
strued to deny or disparage others retained by the people. The powers not 
delegated to the United States by the Constitution, nor prohibited by it to 
the States, are reserved to the States respectively, or to the people." 



OF THE SCHOONER SAVANNAH. 139 

I refer to the case of McCnllocli m. The State of Maryland, 
4 Wheaton, p. 400, in which the opinion was delivered by 
Chief Justice MarshalL He says : 

"No political dreamer was ever wild enough to think of breaking down 
the lines which separate the States, and of compounding the American peo- 
ple into one common mass." 

I cite particularly from pp. 402 and 410. On page 410 his 
lan2;uao;e is as follows : 

*' In America, the powers of sovereignty are divided between the Govern- 
ment of the Union and those of the States. Theij are each sovereign witJi 
respect to the oljecis committed to it, and neither sovereign with respect to the 
chjccts committed to the other. We cannot comprehend that train of reason- 
ing which would maintain that the extent of power granted by the people is 
to be ascertained, not by the nature and terms of the grant, but by its date. 
Some State constitutions were formed before, some since, that of the United 
States. AVe cannot believe that their relation to each other is in any degree 
dependent upon this circumstance. Their respective powers must, we think, 
be precisely the same as if they had been formed at the same time." 

Tlie next I reftr to -is the case of Rhode Island a^st. Mas- 
sachuselts, 12 Peters, 889, where Judge Baldwin says : 

" Before we can proceed in this cause, we must, therefore, inquire whether 
we can hear and determine the matters in controversy between the parties, 
who are two States of this Union, sovereign icithin their respective liovvda- 
7'ies, save that x>ortion of power which they have granted to the Federal Gov- 
ernment, and foreign to each other for all but federal imrfosesP 

I now refer to the case of Livingston vs. Van Ingen^ 9 
Jolinson, 574, where Chancellor Kent reasons thus : 

" When the people create a single entire Government, they grant at once 
all the rights of sovereignty. The powers granted are indefinite and incapa- 
ble of enumeration. Every thing is granted that is not expressly reserved in 
the constitutional charter, or necessarily retained as inherent in the people. 
But ichen a Federal Government is erected with only a portioii of the sover- 
eign 2iower, the rule of comtruction is directly the reverse, and every poicer is 
reserved to the members that is not, either in exi^ress terms or by necessary 
implication, talcen away from them and vested exclusively in the Federal 
Eeadr 

" This rule hns not only been acknowledged by the most intelligent friends 
to the Constitution, but is plainly declared by the instrument itself. This 
principle might be illustrated by other instances of grants of power to Con- 
gress, with a prohibition to the States from exercising the like powers; but 
it becomes unnecessary to enlarge upon so plain a proposition, as it is re- 
moved beyond all doubt by the 10th article of the amendments to the Con- 
stitution. 'That article declares that 'the powers not delegated to the United 
States by the Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people.' The ratification of the Constitu- 
tion by the Convention of this State was made with the explanation and 
understanding that 'every power, jurisdiction and right which was not clear- 
ly delegated to the General Government remained to the people of the seve- 
ral States, or to their respective State governments.' There was a similar 
provision in the articles of Confederation, and the principle results from 



140 TRIAL OF THE OFFICERS AND CKEW 

the very nature of the Federal Government, which consists only of a defined 
portion of the undefined mass of sovereignty vested in the several mem- 
bers of the Union. There may be inconveniences, but generally there will 
be no serious difficulty, and there cannot well be any interruption of the pub- 
lic peace in the concurrent exercise of those powers. The powers of the two 
Governments are each supreme loithin their respective constitutional spheres. 
They may each operate with full effect vpon different subjects^ or they 
may, as in the case of taxation, operate vpon different parts of the same 
subject.^'' 

I now refer to the Massacliusotts Bill of Rights of 1780, 
art. 4. It reads: 

"The people of this Commonwealth have the sole and exclusive right of 
governing themselves as a free, sovereign and independent State; and do, 
and forever hereafter shall, exercise and enjoy every power, juiisdiction and 
right, which is not, or may not hereafter be, by them expressly delegated to 
the United States of America, in Congress assembled." 

I also refer to the New Hampshire Bill of Eights, of Sep- 
tember, 1792 : 

"Art. 7. The people of this State have the sole and exclusive right of 
governing themselves as a free, sovereign and independent State, and do, and 
forever hereafter shall, exercise and enjoy every power, jurisdiction and right 
pertaining thereto, which is not or may not hereafter be by them expressly 
delegated to the United States of America, in Congress assembled." 

I next beg leave to refer your honors to No. 32 of the Fed- 
eralist, by Hamilton, who says : 

" An entire consolidation of the States into one complete national sover- 
eignty would imply an entire subordination of the parts, and whatever 
power might remain in them would be altogether dependent on the general 
will. But as the plan of the Convention aims only at a partial union or con- 
solidation, the State governments tpould clearly retain cdl the rights of sov- 
ereignty tchich they before had, and lohich were not by that act exclusively 
delegated to the United States." 

Also, to the Federalist, No. 39, by Madison, in which he 
says : 

"The diffvrence between a Federal and National Government, as it relates 
to the operation of the Government, is, by the adversaries of the plan of the 
Convention, supposed to consist in this, that in the former the powers oper- 
ate upon the political bodies composing the Confederacy in their political 
capacities; in the latter, on the individual citizens composing the nation in 
their individual capacities. On trying the Constitution by this criterion, it 
falls under the national and not the federal character, though perhaps not 
so completely as has been understood. In several cases, and particularly in 
the trial of controversies to which States may be parties, they must be viewed 
and proceeded against in their collective and political capacities only. But 
the operation of the Government on the people in their individual capacities, 
in its ordinary and most essential proceedings, will, on the whole, in the sense 
of its opponents, designate it, in this relation, a National Government. 

"But if tlie Government be national with regard to the operation of its 
powers, it changes its aspect again when we contemplate it with regard to 
the extent of its powers. The idea of a National Government involves in it 



OF THE SCHOONER SAVANNAH. 141 

not only an authority over the individual citizens, but an indefinite supremacy 
over all persons and things, so far as they are objects of lawful government. 
Among a people consolidated into one nation, this supremacy is completely 
vested in the National Legislature. Among communities united for political 
purposes, it is vested partly in the general and partly in the municipal Legis- 
latures. In the former case all local authorities are subordinate to the 
supreme, and may be controlled, directed or abolished by it at pleasure. In 
the latter the local or municipal autliorities form distinct and independent 
PORTIONS OF THE SUPKEMACY, 710 more szilject, icithin their respective spheres, 
to the general authority, than the general authority is suhject to them icithin 
its men sphere. In this relation, then, the p)roposed Government cannot be 
deemed a national one, since its jurisdiction extends to certain enumerated 
objects only, and leaves to the several States a residuary and inviolable sover- 
eignty over all other objects. It is true that, in controversies relating to the 
boundary line between the two jurisdictions, the tribunal which is ultimately 
to decide is to be established under the General Government. But this does 
not change the principle of the case. The decision is to be impartially made 
according to the rules of the Constitution ; and all the usual and most effect- 
ual precautions are taken to secure this impartiality. Some such tribunal is 
clearly essential to prevent an appeal to the sioord and a dissolution of the 
compact ; and that it ought to be established under the general rather than 
the local Governments, or, to speak more properly, that it could be safely 
established under the first alone, is a position not likely to be combated." 

I will refer, also, to tlie letter of Gov. Seward, written to 
Gov. Gilmore, of Virginia, October 24th, 1839, taken from the 
Assembly Journal, 6od Sess., 1840, p. 55. That distinguished 
public man says : 

" You very justly observe, ' that neither the Government nor the citizens 
of any other country can rightfully interfere with the municipal regulations 
of any country in any way ; ' and in support of this position you introduce 
the following extract from Vattel's Law of Nations, ' that all have a right to 
be governed as they think proper, and that no State has the smallest right to 
interfere in the government of another. Of all the rights that belong to a 
nation, sovereignty is doubtless the most precious, and that which other na- 
tions ought the most scrupulously to respect if they would not do her an 
injury.' 

" It might, perhaps, be inferred, from the earnestness with which these 
principles are pressed in your communication, that they have been contro- 
verted on my part. Permit me, therefore, to bring again before you the 
following distinct admissions: 'I do not question the constitutional right 
of a State to make such a penal code as it shall deem necessary or expedient; 
nor do I claim that citizens of other States shall be exempted from arrest, trial 
and punishment in the State adopting such code, however different its enact- 
ments may be from those existing in tiieir own State.' Thus you will perceive 
that I have admitted the sovereignty of the several States upon which you so 
strenuously insist. To prevent, however, all possible misconstruction upon 
this subject, I beg leave to add that no person can maintain more firmly than 
I do the principle that the States are sovereigu and independent in regard to 
all matters except those in relation to which sovereignty is expressly, or by 
necessary implication, transferred to the Federal Government by the Consti- 
tution of the United States. I have at least believed that va.^ non-compliance 
with the requisition made upon me in the present case would be regarded 
as maintaining the equal sovereignty and independence of this State, and by 
necessary consequence, those of all the other States." 



142 TKIAL OF THE OFFICEES AJSTD CKEW 

I contend, tlien, that the people of the several States, in 
forming the State governinents, have surrendered to the latter 
supreme and sovereign jurisdiction over all questions affecting 
the State, or its citizens as a body politic, not included in the 
grant of power to the General Government by the Federal 
Constitution. This surrender necessarily includes tlie power 
and jurisdiction to determine, co-ordinately with the Federal 
Government, Avhether the Federal Executive Government is 
acting within or transgressing the limits of its legitimate au- 
thority in any case affecting the State as such, or its citizens as 
a body politic, wlien the ques'ion is not one of the validity oi* 
constitutionality of a law of the United States, operating di- 
rectly upon individual citizens, and conformity to which is to 
be enforced or resisted by suit or defence in the Federal or 
State Courts, with the right of ultimate appeal, in either case, 
to the Supreme Court of the United States ; but, on the con- 
trary, brings into collision the I ederal and State Executive 
Departments of the Government, in the exercise of powers 
which, from their very nature and the mode in which they are 
exerted, never can be presented for the determination of a 
Court. 

And with regard to that proposition I would cite Yattel, 
Book I., chap. 1, sec. 2, upon the propt^sition that jurisdiction 
to determine such a mixed question of law and fact has been 
ceded equally to the State as to the Federal Government. Vat- 
tel says : 

" It is evident that, by the very act of the civil or political association, 
each citizen subjects himself to the authority of the entire body in every- 
thing that relates to the common welfare. The authority of all over each 
member therefore essentially belongs to the body politic or State ; but the 
exercise of that authority may be placed in different hands, according as the 
society may have ordained." 

I refer, also, to the Federalist, No. 40, by Madison. He 
uses this language : 

"Will it be said that the fundamental principles of the Confederation 
were not within the purview of the Convention, and ought not to have been 
varied ? I ask, what are those principles ? Do they require that, in the estab- 
lishment of the Constitution, the States should be regarded as distinct and 
independent sovereigns ? They are so regarded by the Constitution proposed. 
* * * Do they require that the powers of the Government should act 
on the States, and not immediately on individuals? In some instances, as 
has been shown, the powers of the new Governnient will act on the States 
in their collective character. In some instances, also, those of the existing 
Government act immediately on individuals. In cases of capture, of piracy, 
of the post-office, of coins, weights and measures ; of trade with the Indians ; 
of claims under grants of land by different States ; and, above all, in the cases 
of trial by Courts Martial, in the Army and Navy, by which death may be 
inflicted without the intervention of a Jury, or even of a Civil Magistrate, — in 
all these cases the ^wwers of the Confederation operate immediately on the 
persons and interests of individual citizens." 



OF THE SCHOONER SAVANNAH. 143 

I would also refer your honors to tlie Report of the Com- 
mittee of the General Assembly of Connecticut, on a call for 
the militia, by t'ne General Government, in 1812. The Ileport 
reads : 

"The people of this State were among the first to adopt that Constitu- 
tion; they have been among the most prompt to satisfy all its lawful demands, 
and to give facility to its fair operations; they have enjoyed the benefits re- 
sulting from the Union of the States; they have loved, and still love and 
cherish that Union, and will deeply regret if any events shall occur to alienate 
their affection from it. They have a deep interest in its preservation, and 
are still disposed to yield a Viilling and prompt obedience to all the legiti- 
mate requirements of the Constitution of the United States. 

"But it must not be forgotten that the State of Connecticut is a free, 
sovereign and independent State, — that the United States are a Confederacy 
of States, — that we are a confederated and not a consolidated Republic. The 
Governor of this State is under a high and solemn obligation 'to maintain the 
lawful rights and privileges thereof as a sovereign, free and independent 
State,' as he is ' to support the Constitution of the United States,' and the 
obligation to support the latter imposes an adilitional obligation to support 
the former. The building cannot stand if the pillars upon which it rests are 
impaired or destroyed. The same Constitution which delegates powers to 
the General Government, forbids the exercise of powers not delegated, and 
reserves those powers to the States respectively." 

And that w;is " approved by both Houses," and the follow- 
ing resolution passed : 

" J?esolved, That the conduct of His Excellency, the Governor, in refus- 
ing to order the militia of this State into the service of the United States, on 
the requisition of the Secretary of War and Major-General Dearborn, meets 
with the entire approbation of this Assembly." 

I would also refer to the second speech of Mr. Webster on 
Mr. Foot's reolution, in reply to Mr. Hayne, in the Senate of 
the United States, where he thus expresses himself: 

" The States are unquestionably sovereign, so far as their sovereignty is 
not affected by this supreme law (the Constitution). * * * r^^^^ Gen- 
eral Government and the State governments derive their authority from the 
same source. Neither can, in relation to the other, be called primary ; though 
one is detinite and restricted, and the other general and residuary." 

Also, to the case of Luther vs. Borden^ 7 Howard, 1 — one 
of the Dorr-rebellion cases. The Supreme Court of the United 
States tliere decided that the government of a State, by its 
Legislature, has the power to protect itself from destruction by 
armed rebellion by declaring martial law, and that the Li-gisla- 
ture is the judge of the necessary exigency. 

At this point the Court intimated that they -would adjourn 
to the following flay. 

Tiie Di:-trict Attorney, Mr.E. Delafielcl Smith, stated that the 
case of the United States vs. William Smith, one of the ship's 
company of the privateer Jefferson Davis, the trial of which had 



144 TRIAL OF THE OFFICERS AND CREW 

been proceeding in Philadelphia, had terminated in a verdict. 
That case involved the main questions, and also the question 
of jurisdiction involved here. Mr. Smith further stated that 
he had sent for a copy of the charge of Mr. Justice Grier in 
that case, and expected to receive it by telegraph, and he de- 
sired to reserve the right to refer to that charge as one of his 
authorities in this case. 

The Court assented. 

Adjourned to Saturday, October 26th, at 11 A. M. 



FOURTH DAY. 

Saturday, Oct. 26, 1861. 



The Court met at 11 o'clock, when — 



Mr. Larocque resumed : 

I will proceed very briefly, if your honors please, to close 
what I was submitting to the Court upon the propositions 
which, as I maintain, tend to show a colorable authority in the 
State government, in possible cases that might arise, to author- 
ize the issuing of letters of marque. I will state them in their 
connection, in order that your honors may see what they are. 
The first is the one I considered yesterday, viz., that the Fed- 
eral Executive Government and the executive governments 
of the States, under the Constitution of the United States, each 
possess the jurisdiction to decide whether their respective acts 
are within or exceed the limits of their respective constitu- 
tional powers in cases of collision between them in their ad- 
ministrative acts operating upon the public domain, or uj)on 
the State, or its citizens as a body politic. 

I had concluded what I intended to submit upon that, and 
proceed to the others, which are — 

2. That in such cases, the Constitution having erected no 
common arbiter between them, the right of forcible resistance 
to the exercise of unlawful jiower, which, by the law of nature, 
resides in the people, has been delegated by them, by the Fed- 
eral and State Constitutions respectively, to the Federal and 
State Governments respectively, and each having the jurisdic- 
tion to judge whether its acts are within the constitutional 
limit of its own powers, has also necessarily the right to em- 
ploy force in their assertion or defence, if needed. 

3. That in such cases the citizen of a State which, in its 
political capacity, has come into forcible collision with the 
Federal Government, owing allegiance to both within the lim- 

,its of their respective constitutional powers, and each possess- 



OF THE SCHOONER SAVANNAH. 145 

mg the jurisdiction to determine for him the compound ques- 
tion of law and fact, whether the constitutional limit of those 
powers has been exceeded by itself or the other in the partic- 
ular case, is protected from all criminal liability for any act 
done by him, in good faith, in adhering to and under the au- 
thority of either Government. 

I wish very briefly to refer your honors to a few author- 
ities, which, 1 hold, sustain these propositions. I say, in the 
tirst place, that this right bears no analogy whatever to the 
right, once claimed and most snc;cssfully refuted, of the in- 
habitants of a State, in Convention, to decide by ordinance 
npon the nnconstitntionality of a law of the Union, and to 
prevent by force its operation within the limits of the State, 
in a case legitimately falling within the cognizance of the 
Conrfs. The claim to collect duties un^ler an Act of Congress 
alleged to be unconstitutional was strictly an instance of this 
latter class. The citizen from whom the duties were claimed 
could simply refuse to pay, and thereby refer the question of 
constitutifmality of the law to tlie judicial tribunals to which 
it properly belonged, and whicii must necessarily pass upon 
the question before the duties could be collected. On the 
other hand, the claim to hold or retake forts or other public 
places within the limits of a State, as property of the United 
States, is one against which, if unauthorized, the State could 
not by possibility defend itself through the agency of the Courts. 

Now, if your honors please, I have stated most distinctly, 
and admitted most fully, that, in whatever cases the judicial 
power of the United States extends to, it; is suj^reme. That is 
to say, if a collision takes place in a suit in a State Court be- 
tween the Federal and State laws, and the decision of the 
State Court is against the right, privilege, or exemption, as it 
is called in the judiciary Act, claimed under the authority of 
the Union, the Supreme Court of the United States can redress 
the error. But 1 am now speaking of that class of cases where 
the judiciary have nothing whatever to do, and in which, I 
contend, the Federal and State authorities are each supreme 
and sovereign, within the limits of their respective power, and 
neither has any right or authority beyond the lines which 
bound their respective jurisdiction. And, if your honors 
plea-e, I refer to the Inaugural Address of Mr. Lincoln, not 
only fur the proposition that the judicial authority has nothing 
to do whatever in a case such as that I am now supposing, but 
that, even in cases where the judiciarj^ is competent to act, its 
decisions do not form precedents, do not form rules for the 
government of the co-ordinate departments of the Union, in 
future cases of State policy, and that the executive and the leg- 
islative departments are still left at liberty to act as it no de- 
10 



146 TRIAL OF THE OFFICERS AND CREW 

cision liad been made. I do not: mean to be miderstood as 
acquiescing in that claim ; I consider it as a doctrine infinitely 
more dangerous ajid destructive tlian the doctrine of constitu- 
tional secession ; but it comes to us as the claim set up on the 
part of the Pres dent : and if that is at all correct, there is an 
end of all pretence that tlie jiidiclaiy is competent to afford 
any relief or protection in the utlier class of cases referred to. 
He savs : 

" I do not foigtt the position assumed by some, that constitutional ques- 
tions are to be decided by the Supreme Court ; nor do I deny that such deci- 
sion must be binding in anj' case upon the parties to a suit, while they are 
also entitled to very high respect and consideration in all parallel cases by 
all other departments of the Government ; and while it is obviously possible 
that such decision may be erroneous in anj' given case, still the evil eifect 
following it being limited to that particular case, with the chances that it 
ma}'' be overruled, and never become a precedent for other cases, can better 
be borne than could the evils of a different practice. At the same time the 
candid citizen must confess that, if the policy of the Government upon the 
vital questions affecting the M'hole people is to be irrevocably fixed by the 
decisions of the Supreme Court, the instant they are made in ordinary litiga- 
tions between parlies in personal actions, the people will have ceased to be 
their own masters, having to that extent practically resigned the Govern- 
ment into the hands of that eminent tribunal. Nor is there, in this view, 
any assault upon the Court or the Judges. It is a duty from which they 
may not shrink, to decide cases properly brought before them, and it is no 
fault of theirs if others seek to turn their decisions to political purposes." 

I have not the document at this moment ; but your honors 
will probably bear in mind that the Executive also lately con- 
sulted the law-officer of the Government upon the question of 
suspending the privilege ot habeas corjnis^ and I well remem- 
ber the clause in the opinion which was delivered by that emi- 
nent legal gentleman and high officer of the Government on 
that occasion, and which was afterwards communicated by the 
President to Congress as the basis of his action. In that opin- 
on the present learned Attorney-General used this language : 
'•To say that the departments of our Goveinment are co-ordi- 
nate, is to say that the judgment of one of them is not binding 
upon the other two, as to the arguments and principles involved 
in the judgment. It binds only tlie parties to the case decided." 
And your honors will recollect that, acting upon that enuncia- 
tion of the law of the land and of the construction of the Con- 
stitution, although he admitted that the Supreme Court of the 
United States had decided tliat the privilege of Jiaheas corpus 
could not be suspended by the Executive, without the interpo- 
sition of Congress, the legal adviser of the Government held, 
at the same time, that that decision of the Supreme Court was 
not binding upon the Executive. 

Now, for the purpose of showing what I mean by the right 
of resistance reserved to the people by the law of nature, which, 



OF THE SCHOONER SAVANNAH. 147 

as I say, is delegated bj tlicm to these two sovereigns, for tlie 
purpose tliat each may maintain its own authority and pre- 
vent encroaclnnent by the other, 1 beg to refer your honors 
to liiitherfortJi'fi Institutes of Natural Law^ vol. 1, j)"^'^ '^''^l? 
commencing with section 10. And as a proof that 1 broach 
no novel or revolntionary doctrine, your honors will bear in 
mind that these Institutes of Natui-al Law were a course of 
lectures delivered in one of tlie great seminaries of learning of 
England, and their doctrines tliought fit and proper to be in- 
stilled into the minds of the youtli of that Kingdom, the ]o_yalty 
of whose people to their Governmeut has become proverbial 
among all the nations of the workl. 
■ The author says : 

"It is a question of some importance, and has been thought a question 
not easily to be determined, whether the members of a civil society have, 
upon any event, or in any circumstances whatsoever, a right to resist their 
governors, or rather the persons who are invested with the civil power of 
that society." 

Then he states several cases in wliicli the civil governors, as 
he calls them, lose their power over their subjects, and con- 
tinues : 

"Fourthly, Though the governors of a society should be invested by the 
constitution with all civil power in the highest degree and to the greatest 
extent that the nature of a civil power will admit of, yet this does not imply 
that the people are in a state of perfect subjection. Civil power is, in its own 
nature, a limited power ; as it arose at tirst from social union, so it is limited 
by the ends and purposes of such union, whether it is exercised, as it is in 
democracies, by the body of the people, or, as it is in monarchies, by one 
single person. But if the power of a Monarch, when he is considered as a 
civil governor, is thus limited by the ends of social union, whatever obedience 
and submission the people may owe him w^hilst he keeps within these hmits,. 
he has no power at all, and consequently the people owe him no subjection, 
when he goes beyond them. 

" Having thus taken a short view of the several ways in which the author- 
ity of the governors of a society fails, and the subjection of the people ceases, 
we may now return to the question which was before us. 

" If you ask whether the members of a civil society have a right to resist 
the civil governors of it by force ? your question is too general to admit of a 
determinate answer. 

"As far as the just authority of the civil governors and the subjection of 
the people extend, resistance by force is rebellion. 

"Subjection consists in an obligation to obey; as far, therefore, as the 
people are in subjection, they can have no right to resist; because an obliga- 
tion to obey, and a right to resist, are inconsistent with one another. 

"But the power of civil governors is neither necessarily connected with 
their persons, nor infinite whilst it is in their possession. 

" It ceases by abdication ; it is overruled by the laws of nature and of 
God; and it does not extend beyond the limits which either the civil consti- 
tution or the ends of social union have set to it. 

" Where their power thus fails in right, and they have no just authority, 
the subjection of the people ceases; that is, as far as of right they have no 
power, or no just authority, the people are not obliged to obey them; so that 
any force which they make use of, either to compel obedience or to punish 



148 TRIAL OF THE OFFICERS AND CREW 

disobedience, is unjnst force; the people may perhaps be at liberty to submit 
to it, if they please ; but, because it is unjust force, the law of nature does not 
oblige them to submit to it. 

" But this law, if it does not oblige the people to submit to such force, 
allows them to have recourse to the necessary means of relieving themselves 
from it, and of securing themselves against it, to the means of resistance by 
opposing force to force, if they cannot be relieved from it and secured against 
it by any other means." 

I continue my citation at — 

"Sec. XV. In the general questions concerning the right of resistance, it 
is usually objected that there is no common judge who is vested with author- 
ity to determine, between the supreme governors and the people, where the 
right of resistance begins; and the want of such a judge is supposed to leave 
the people room to abuse this right ; they may possibly pi etend that they are 
unjustly oppressed, and, upon this pretence, may causelessly and rebelliously 
take up arms against their governors, although they are laid under no other 
restraints, and no other compulsion is made use of, but what the general 
nature of civil society or the particular circumstances of their own society 
require. 

"But, be this as it may, the possibility that the right may be abused, does 
not prove that no such right subsists. 

"If we would conclude, on the one hand, that the people have no right 
of resistance, because this right is capable of being abused, we might, for the 
same reason, conclude, on the other hand, that supreme governors have no 
authoiity. 

"Whatever authority these governors have in any civil society, it was 
given them for the common benefit of the societj^; and it is possible that, un- 
der the color of this authority, they may oppress the people in order to pro- 
mote their own separate benefit. 

" Sec. XVI. It is a groundless suggestion, that a right of resistance in 
the people will occasion treason and rebellion, and that it will weaken the 
authority of civil government, and will render the ofBce of those who are in- 
vested with it precarious and unsafe, evt n though they administer it with the 
utmost prudence and with all due regard to the conunon benefit. 

"The right of resistance will indeed render the general notion of rebellion 
less extensive in its application to particular facts. 

"All use of force against such persons as are invested with supreme 
power, would come under the notion of rebellion, if the people have no right 
of this sort; whereas, if they have such a right, the use of force to repel ty- 
ranical and unsocial oppression, when it cannot be removed by any other 
means, must have some other name given to it. So that, however true it may 
be that, in consequence of this right of resistance, supreme government will 
be liable, of right, to some external checks, arising out of the law of natvire, 
to which they would otherwise not be liable, yet it cannot properly be said 
to expose them to rebellion. " 

I beg, in the next place, to read to your honors, from the opin- 
ion of Mr. Justice Johnson, a shitrt ]iaragrnph. It is to be tbiind 
in Isf Wheaton, 363, in the case of JIarti7i vs. llunter's Lessee. 
I believe a paragraph from that has been already read, on the 
other side, and I wish to give yo\i, in connection with it, what 
he saj^s, speaking of the power of the judiciary, and the conse- 
quences that would result in any case to which that power did 
not reach. He says : 



OF THE SCHOONER SAVANNAH. 149 

" On the other hand, so firmly am I persuaded that the American people 
no longer can enjoy the blessings of a free Government, whenever the State 
sovereignties shall be prostrated at the feet of the General Government, nor 
the proud consciousness of equality and security, any longer than the inde- 
pendence of judicial power shall be maintained consecrated and intangible, 
that I could borrow the language of a celebrated orator, and exclaim, ' 1 re- 
joice,that Virginia has resisted.' " 

I also wish to read a sentence frotn the case of Moore vs. 
The State of Illinois^ in 14 i:lowar>l, p. 20 — the opiuion by Mr. 
Justice Grier. He says : 

" Every citizen of the United States is also a citizen of a State or Territory. 
He may be said to owe allegiance to two sovereigns, and may be liable to 
punishment for an infraction of the laws of either." 

And Mr. Justice McLean, in speaking of the same subject, 
in the same case, at page 22, sajs : 

"It is true the criminal laws of the Federal and State Governments ema- 
nated from difterent sovereignties; but they operate on the same people, and 
should have the same end in view. In this respect the Federal Government, 
though sovereign within the limitation of its powers, may, in some sense, be 
considered as the agent of the State,s, to provide for the general welfare by 
punishing offences under its own laws within its jurisdiction." 

I wish also to refer to the ca^e of the United States va.JBooth^ 
in 21 Howard — the opinion of Chikf Justice Taney — in con- 
nection wiih the questiotj of what the result is where the 
judiciary has not power to acr. He says : 

" The importance which the framers of the Constitution attached to such 
a tribunal, for the purpose of preserving internal tranquillity, is strikingly 
manifested by the clause which gives this Court jurisdiction over the sovereign 
States which compose this Union, when a controversy arises hetweeii them. 
Instead of reserving the right to seek redress for injustice from another State 
by their sovereign powers, they have bound themselves to submit to the 
decision of this Court, and to abide by its judgment. And it is not out of 
place to say, here, that experience has demonstrated that this power was not 
unwisely surrendered by the States ; for, in the time that has already elapsed 
since this Government came into existence, several irritating and angry con- 
troversies have taken place between adjoining States, in relation to their 
respective boundaries, and which have sometimes threatened to end in force 
and violence, but for the power vested in this Court to hear them and decide 
between them. 

"The same purposes are clearly indicated by the different language em- 
ployed when conferring supremacy upon the laws of the United States and 
jurisdiction upon its Courts. In the first case, it provides that 'this Consti- 
tution, and the laws of the United States, which shall ie made in pursuance 
thereof, shall be the supreme law of the land, and obligatory upon the Judges 
in every State.' The words in italics show the precision and foresight which 
marks every clause in the instrument. The sovereignty to be created was to 
be limited in its powers of legislation ; and, if it passed a law not authorized 
by its enumerated powers, it was not to be regarded as the supreme law of 
the land, nor were the State Judges bound to carry it into execution." 

Ami further on, speaking of the claimed right of the State 



150 TRIAL OF THE OFFICERS AND CREW 

of Wisconsin to discharge a pi isoiur convicted in tlie United 
States Court npon a criminal conviction, and to refuse after- 
wards to obey a writ of error issned out of the Siiireme Court 
of the United States to review that judgment, he uses language 
of this kind : 

" This light lo inquire by process of liabeas corpus, and the duty of the 
oflBcer to make a return, grows necessarily out of the complex character of 
our Government, and the existence of two distinct and separate sovereignties 
within tlie same territorial space, each of them restricted in its powers, and 
each, within its sphere of action prescribed by the Constitution of the United 
States, independent of the other." 

Now, if your honors please, upon tliat question still fur- 
ther — that where there is no possibility of the powei- of the judi- 
ciary being exercised, there being, as the learned Cliief Justice 
expresses it in his own language, "two distinct and s.'parate 
sovereignties within the same territorial space " exercising 
jurisdiction, the right of forcible resistance exists in the State 
governments. I beg to lefer to the Federalist, No. 28, by 
Alexander Hamilton, p. 12<i. He says: 

" It may safely be received as an axiom in our political system, that the 
State governments will in all possible contingencies afford complete security 
against invasions of the public liberty by the federal authority. Projects of 
usurpation cannot be masked under pretences so likely to escape the pene- 
tration of select bodies of men as of the people at large. The Legislatures 
will have better means of information; they can discover the danger at a 
distance, and, possessing all the organs of civil povver and the confidence of 
the people, they can at once adopt a regular plan of opposition; they can 
combine all the resources of the community. They can readily communicate 
with each other in the different States, and unite their common forces for 
the protection of their common liberty." 

I refer also to the Federalist^ No. 46, by James IVladison, 
where he uses this language : 

" Were it admitted, however, that the Federal Government may feel an 
equal disposition with the State governments to extend its power beyond 
the due limits, the latter would still have the advantage in the means of de- 
feating such encroachments. If the ^ct of a particular State, though 
unfriendly to the National Government, be generally popular in that State, 
and should not too grossly violate the oaths of the State officers, it is executed 
immediately, and of course by means on the spot, and depending on the 
State alone. * * * Qf, i\^q other hand, should an unwarrantable meas- 
ure of the Federal Government be unpopular in particular States, which 
would seldom fail to be the case, or even a warrantable measure be so, which 
may sometimes be the case, the means of oppositioi. to it are at hand. * * * 

" But ambitious encroachments of the Federal Government on the author- 
ity of the State governments would not excite the opposition of a single 
State, or of a few States only. They would be signals of general alarm. 
Every government would espouse the common cause ; a correspondence 
would be opened; plans of resistance would be concerted; one spirit would 
animate and conduct the whole. The same combination, in short, would 
result from an apprehension oi i\\Q federal as was produced by the dread of 



OF THE SCHOONER SAVANNAH. 151 

a. foreign yoke ; and, unless the projected innovations should be voluntarily 
renounced, the same appeal to a trial of force would be made in the one case 
as was made in the other. But what degree of madness would ever drive 
the Federal Government to such an extremity ? * * * But what would 
be the contest in the case we are supposing? Who would be the parties? 
A few Representatives of the people would be opposed to the people them- 
selves; or, rather, one set of Representatives would be contending against 
thirteen sets of Representatives, with the whole body of their common constit- 
uents on the side of the latter. The only i-efuge left for those who prophesy 
the downfall of the State governments is the visionary supposition that the 
Federal Government may previously accumulate a military force for the pro- 
jects of ambition. * * =»= Extravagant as the supposition is, let it, how- 
ever, be made. Let a regular army, fully equal to the resources of the 
country, be formed, and let it be entirelj^ at the devotion of the Federal Gov- 
ernment; still it would not be going too far to say that the State govern- 
ments, with the people on their side, would be able to repel the danger. 
The highest number to which, according to the best computation, a standing 
army can be carried in any country, does not exceed y^o^b of the w^liole num- 
ber of souls, or 7i\ih part of the number able to bear arms. This proportion 
would not yield to the United States an army of more than 25 or 30,000 
men. To these would be opposed a militia amounting to near 500,000 citi- 
zens, with arms in their hands, officered by men chosen from among them- 
selves, fighting for their common liberties, and united and conducted by 
GOVERNMENTS posscsslng their affections and confidence." 

I shall not spend the time of your lionors by reading the 
Virginia and Kentucky resolutions — the one the production of 
James Madis(»n, and the other of Thomas Jefferson — with 
which yon are so ianjiliar. They fully bear out the doctrine 
for which I contend, and much more than I contend for, I wish, 
however, to read, from the American State Pai)ers, vol. 21, p. 
t>, a series of resolutions ado|)ted by the Legislature of Penn- 
sylvania, on the 3d April, 1809. Tliey are as follows : 

" Resolved,, by the Senate and House of Representatives of the Common- 
wealth of Pennsj'lvania : 

"That, as a member of the Federal Union, the Legislature of Pennsylva- 
nia acknowledges the supremacy, and will cheerfully submit to the authority, 
of the General Government, as far as that authority is delegated by the Con- 
stitution of the United States. But while they yield to this authority, when 
exerted within constitutional limits, they trust they will not be considered 
as acting hostile to tiie General Government wAc«, as the guardians of the 
State rights, they cannot permit an infringement of those rights by an uncon- 
stitutional exercise of power in the United States Courts. 

"■Resolved, That in a Government like that of the United States, where 
there are powers granted to the General Government and rights reserved 
to the States, it is impossible, from the imperfection of language, so to deBne 
the limits of each that difficulties should not sometimes arise from a collision 
of powers ; and it is to be lamented that no provision is made in the Consti- 
tution for determining disputes between the General and State Governments 
by an impartial tribunal, when such cases occur. 

'■'Resolved, Tbat, from the construction which the United States Courts 
give to their powers, the harmony of the States, if they resist the encroach- 
ments on their rights, will frequently be interrupted ; and if, to prevent this 
evil, they should on all occasions yield to stretches of power, the reserved 
rights of the States will depend on the arbitrary powers of the Courts. 



152 TEIAL OF THE OFFICEKS AND CEEW 

" Resolved, That should the independence of the States, as secured by the 
Constitution, be destroyed, the liberties of the people in so extensive a coun- 
try cannot long survive. To suffer the United States Courts to decide on 
State rights, will, from a bias in favor of power, necessarily destroy the federal 
part of our Government ; and, whenever the Government of the United States 
becomes consolidated we may learn from the history of nations what will 
be the event." 

To prevent the balance between the General and State 
Governments from being destroyed, and the harmony of the 
States from being interrupted — 

^'■Resolved, That our Senators in Congress be instructed, and our Repre- 
sentatives be requested, to use their influence to procure amendment to the 
Constitution of the United States, that an impartial tribunal may be estab- 
lished to determine disputes between the General and State Governments; 
and that they be further instructed to use their endeavors that, in the mean- 
time, such engagements may be made between the Governments of the Union 
and of the State as will put an end to existing difficulties." 

Those resolutions were transmitted to Congress by Presi- 
sident Madison, They were never acted upon. 

My next reference is to the Remonstrance of the State of 
Massachusetts against the War of ISI'2, adopted June 18tii, 
1813 — irom tlie American jState Papers^ vol. 21, page 21o : 

"The Legislature of Massachusetts, deeply impressed with the sufferings 
of their constituents, and excited by the apprehension of still greater evils in 
prospect, feel impelled by a solemn sense of duty to lay before the National 
Government their views of the public interests, and to expres.s, with the 
plainness of freemen, the sentiments of the people of this ancient and exten- 
sive Commonwealth. 

"Although the precise limits of the powers reserved to the several State 
sovereignties have not been defined by tlie Constitution, yet we fully concur 
in the correctness of the opinions advanced by our venerable Chief Magistrate, 
that 'our Constitution secures to us the freedom of speech, and that, at this 
momentous period, it is our right and duty to inquire into the grounds and 
origin of the present war, to reflect upon the state of public affairs, and to 
express our sentiments concerning them with decency and frankness, and to 
endeavor, so far as our limited influence extends, to promote, by temperate 
and constitutional means, an honorable reconciliation. * * * * j^jig 
States, as well os the individuals composing them, are parties to the Natio?ial 
Compact; and it is their 2)eeuliar duty, especially in times of peril, to watch 
over the rights and guard the 'privileges solemnly guaranteed by that instru- 
ment." 

There were also a set of resolutions, which I will not take 
time to read, passed by the Legislature of Kew Jersey, Novem- 
ber 2Ttli, 1827, which will be found in the A7neriG<in State 
Papers., vol. 21, page 7^7. They were based upon the then 
prevalent opinion that tlie Constitution had not conferred upon 
the Supreme Court of the United States the power to decide 
disputed questions of boundary, or similar questions, between 
States of tlie Union, and proposed an amendment to remedy 
that difficitlty, expressly recognizing that the right to resort to 



OF THE SCHOONER SAVAISTNAH. 153 

force in such cases necessarily resulted from the omission. 
The decision of the Supreme Court, in the case of RTiode Island 
vs. Massachusetts, that it possessed tluit jurisdiction, ccmjured 
that danger. Thegreater one, however, of tliere being no tribunal 
to administer justice between the federal and State sover- 
eignties, remains. 

I will also refer to one other resolution, passed by the 
Legislature of the State of New York, on the 29th January, 
1833, upon the Nullification Ordinances, as they were called : 

'■'■Resolved, That we regard the right of a single State to make void 
within its limits the laws of the United States, as set forth in the Ordinance 
of South Carolina, as wholly unauthorized by the Constitution of the United 
States, and, in its tendency, subversive to the Union and the Government 
thereof." 

I do not know that any sane man will now dispute that 
truth ; but this follows. The present Secretary of State of the 
United States, at that time a member of the Senate of this State, 
then moved : 

" That this Legislature do adhere, in their construction of the Constitution, 
to the principle that the reserved rights of the States, not conceded to the 
General Government, ought to be maintained and defended^ 

This latter resolution was indefinitely postponed. 

I will not now stop to read what was said by President 
Buchanan, in his Mes^sage to Congress, on December 4th, 
1860, as to the consequences of a refusal by the States to repeal 
the obnoxious laws which had been enacted. You will recol- 
lect that he said that, if that was not done, the injured States 
would be justified, standing on the basis of the Constitution, in 
revolutionary resistance to the Government of the Union. I 
do not need to claim that, f )r I have nothing to do, on this trial, 
with the justice of these mighty questions, debated between the 
General Government and the governments and people of these 
States. The question of tiieir justice or injustice does not arise 
upon this trial. I was simply making these citations to show 
that, by the ablest writers cotemporaneous with the Constitu- 
tion, and who performed the work of framing it — by the pro- 
ceedings of legislative bodies and the decisions of the Supreme 
Court — the principle has been recognized that, in all cases in 
which jurisdiction has not been given to the judiciary over 
questions between the General Government and the State, they 
are equal, co-ordinate, each possessed of the right to decide 
for itself as to the excess by the other, if it is claimed that there 
is an excess of constitutictnal power, and to assert its own right 
or repel the encroachments of the other by force. 

I say, in further confirmation of this, that the offence of 
treason against the United States, under the 3d section of the 



154 TKIAL OF THE OFFICERS AND CKEW 

3d article of tlie Constitution of the United States, must be a 
levying of war against them all The words, "United States," 
in that sectioti, mean the States, and not merely the Govern- 
ment of the Union. This is evident from the fact that the sec- 
tion, as originally reported (being sec. 2 of art. 7), read : ''Trea- 
son against the United States shall consist only in levying war 
against the United States, ok anv of them; and in adhering to 
the enemies of the United States, oe any of thkm," &c. (Jour- 
nal of the Convention, pa^e 221). It was amended so as to 
read collectively only, and not disjunctively. When, however, 
tlie act done is not under authority of a State, I concede that 
levyinor war against the General Government is levying war 
against all the States. 

And, in this connection, I wish to refer to the proceedings, 
which I have hastily adverted to in opening to the Jury, upon 
the adoption of the section of the Constitution relating to trea- 
son. 1 refer to the Madison Papers, vol. 3, page 1370 : 

" Art. 7, sec. 2, concerning treason, was then taken up. 

" J/r. OouTerneur Morris was for giving to the Union an exclusive right 
to declare what should be treason. In case of a contest between the United 
States and a particular State, the people of the latter must, under the disjunc- 
tive terms of the clause, be traitors to one or other authority. 

"X*?-. Johnson contended that treason could not be both against the United 
States and individual States, being an offence against the sovereignty, which 
can be but one in the same community. 

'■'■Mr. Madison remarked that as the definition here was of treason against 
the United States, it would seem that the individual States would be left in 
possession of a concurrent power, so fir as to define and punish treason par- 
ticularly against themselves, which might involve double punishment." 

The words, " or any of them," were here stricken out by a 
vote. 

" Mr. Madison : This has not removed the difficulty. The same act 
might be treason against the United States, as here defined, and against a 
particular State, <according to its laws. 

" Dr. Johnson was still of opinion there could be no treason against a par- 
ticular State. It could not, even at present, as the Confederation now stands — 
the sovereignty leing in the Union ; much less can it be under the proposed 
system. 

" Colonel Mason : The United States will have a qualified sovereignty only. 
The iiidimdual States will retain a part of the sovereignty. An act may be 
treason against a particular State, which is not so against the United States. 
He cited the rebellion of Bacon, in Virginia, as an illustration of the doctrine. 

'■'•Mr. King: No line can be drawn between levying war and adhering to 
the enemy, against the United States, and against an individual State. Treason 
against the latter must be so against the former. 

" Mr Sherman : Resistance against the laws of the United States, as dis- 
tinguished from resistance against the laws of a particular State, forms the 
line." 

Mr. Ellsworth, afterwards Chief Justice of the Supreme 



OF THE SCHOONER SAVANNAH. 155 

Court of the United States, closed the debate in these memora- 
ble words : 

" The United States are sovereign on one side of the Hne dividing the juris- 
dictions ; the States, on the other. Each ought to have jjower to defend their 
respective sovereignties.''^ 

Now, if your honors please, it will probably be attempted 
to be answered to the argument, that by section 10 of article 1 
of the Constitution of the Union, the States are forbidden to 
enter into any treaty, alliance, or confederation, or to grant 
letters of marque itnd reprisal ; or, without the consent of Con- 
gress, to enter into any agreement or compact with another 
State ; or to engage in war, unless actually invaded, or in such 
imminent danger as will not admit of delay. This does not con- 
flict with, but, on the contrary, confirms, the views I have pre- 
sented, fur the following reasons: 

The prohibiiion against entering into any treaty, alliance, 
or confederation, and against granting letters of marque and 
reprisal, has clearly no reference whatever to the relations 
which the States of the Union sustain to each other. It refers 
solely to their relations towards foreign powers. 

1 beg to cite, upon that subject, from Grotius, Lib. 1, chap. 
4, sec. 13. He says: 

"In the sixth place, when a King has only a part of the sovereignty, the 
rest being reserved to the people, or to a Senate, if he encroaches upon the 
jurisdiction which does not belong to him he may lawfully be opposed by 
force, since in that regard he is not at all sovereign. This is the case, in my 
opinion, even when in the distribution of the sovereign power the power of 
making war is assigned to the King. For the grant of such a fovser mvst in 
that case be understood only in its relation to icars icith foreign powers, those 
tcho possess a 2Mrt of the aovereignty necessarily having at the same time the 
right of defending it ; and when a necessity arises of havintr recourse to for- 
cible resistance against the King, he may, by right of war, lose even the 
part of the sovereignty which incontestibly belonged to him." 

I say, then, in the next place, that if any of the States, 
having come into collision with any of their sister States, or 
with the General Government, and being threatened with 
invasion or overthrow in the contest, resort to letters of 
marque as a means of weakening their adversary, and thereby 
preventing or retarding the threatened invasion, their right to 
do so is not at all affected or impaired by that provision of the 
Federal Constitution. The right ot resistance includes it as well 
as every otiier means of rendering resistance effectual. 

So also with regard to the proiiibition against entering into 
any treaty, alliance, or confederation, Avhich is coupled with 
the prohibition against granting letters of marque in the first 
paragraph of the tenth section. That that prohibition is 
restricted to compacts or agreements with foreign povrers, is 
manifest from the whole structure of the section. 



156 TRIAL OF THE OFFICEES AND CKEW 

The second paragraph of the section provides that no State 
shall, without the consent of Congress, enter into any agree- 
ment or compact with another State. It follows that, conceding 
the invalidity of the Stae acts of separation from tlie Union, 
which tlie whole of the preceding argument admits, the Con- 
federation of the States claiming to have sepirated is not valid 
against the authority of the Union; but the individual States, 
in ratifying the Constitution of the so-called Confederate States, 
have done more than to make an agreement or compact witli 
each otlier. Each one of them, separately, has conferred upon 
the same agent the authority to issue the commission in ques- 
tion, as its act. 

Moreover, this second paragraph of the tenth section 
strongly confirms the doctrine of the right of forcible resistance 
of the States in the Union. It permits a State, without the 
consent of Congress, to engage in war when actually invaded, 
or in such imnjinent danger as will not admit of delay. This, 
it will be remembered, is in the paragraph of the section im- 
posing restrictions upon the States, and clearly justifies forcible 
jesisuxnce, rising even to the dignity of war, by one State, to 
aggressive invasion, from another or others, when the danger is 
so imminent that it will not admit of dehiy. 

The same paragraph also permits individual States to keep 
troops and sliips of-war, in time of war. Tlie word "troops" 
here is evidently used in the sense of regular troops, forming 
an army, in contradistinction to the ordinary State militia. 

To apply, then, these principles to the facts of this case : 
The President of the United States had, by proclamation, on 
the 15th April last, called for military contingents from the 
various States of the Union, to put down resistance to the exer- 
cise of federal authority in the State of South Carolina and 
other Southern States. 

Those States had, by their Legislatures and Conventions of 
their people, decided that a proper case for resistance to the 
federal authoiity claimed to be exercised within their borders 
had arisen, and had authorized and commanded such resist- 
ance. 

The oth section of the Act of July 13th, 1861, and the Pres- 
ident's Proclamation of August IGth, under that Act, concede 
that the resistance was claimed to be under authority of the 
State governments; that tliat claim was not disavowed by the 
State governments ; and ( 'ongress thereupon legislated, and 
the President exercised the authority vested in him by the Act, 
on the a-^sumption that such was the fact, — prohibiting commer- 
cial intercourse with those States, authorizing captures and 
confiscations of the property of their citizens without regard 



OF THE SCHOONER SAVANNAH. 157 

to tlieir political affinities, and placing them, as we conteuil, in 
all respects, upon the footing ot public enemes. 

They were, moreover, threatened witti immediate invasion. 
The Proclamation of the President assigned, as their first proba- 
ble dnt}^, to the military contingents called for from other 
States, to repossess the Federal Government of property which 
it could not repossess without an actual invasion of the discon- 
tented States. 

The Congress of the Union was not then in session. It had 
adjourned, after having omitted to confer upon the Federal 
Executive the power to resort to measures of coercion, which 
had been under dit-cussion during its sitting. 

The commission in question was issued as one of the meas- 
ures ot forcible resistance to this exercise of federal ])ower, 
claimed — whether rightfully or wrongfully, is not the quest'on 
here — to be unlawful by the governments of all the States 
against whicii it was directed, and to which those governments 
enjoined forcible resistance upon, and authorized it by, their 
citizens. 

I contend, therefore, that whether the action of the Federal 
Government or ot the State government was justifiable or 
unjustifiahle, no citizen of any of the States which authorized 
and enjoined such resistance is criminally responsible, whether 
he espoused one side or the other in the unhappy controversy, 
either to the General Government or to the government of the 
State of which he is a citizen, so long as he acted in good faith, 
and in the honest belief that the government to whicli he 
adhered was acting within the legitimate scope of its constitu- 
tional powers. We contend that every sovereign has necessarily 
power to defend its sovereignty, and to decide the mixed ques- 
tion of laM'^ and fact as to whether it has been infringed ; that 
tlure can be no sovereign, or defence of sovereignty, without 
subjects to whom the sovereign's mandate and authority are a 
protection; and that as one sovereign cannot law^fully punish 
another, who is his equal, by personal pains and p)enalties, ior 
resistance, after he is subdued, so neither can punish the sub- 
ject of both who, in good faith and under honest convictions of 
dut}', adhered to either in the struggle. 

Now, if your honors please, I pass to the next proposition, 
which is : 

Tiiat the defendants, who are citizens of the States calling 
themselves Confederate States, cannot be convicted under this 
indictment, if they in good faith believed, at the time of the 
capture of the Joseph, that the political status of those States, 
^s members of the Federal Union, had been legally ter- 
minated, and that they had thereby ceased to be citizens of the 
United States, and made the capture in good faith, under the 



158 TRIAL OF THE OFFICERS AND CEEW 

comiriission in evidence, as a belligerent act, — such States 
being, as they supposed, at war with the United States. 

It is not necessary for me, if your honors please, to enlarge 
upon that. 1 rely, for t])at proposition, on the same authorities 
that I have already cited to the point, that robbery or piracy 
cannot be committed, unless it is committed with felonious or 
piratical intent. But 1 say, with reference to the validity or 
invalidity of those acts of separation from the Union, that the 
counsel for the prisoners, whatever their private convictions 
may be, are not at liberty to concede their invalidity, so long 
as that concession may affect the lives of their clients. Their 
validity has been maintained by some of the ablest lawyers of 
the country, and in the Senate of the United States itself, and 
by all the authorities, legislative, executive and judicial, of the 
States which have adopted them. If, as they undoubtedly did, 
the prisoners honajide believed in their validity, the argument 
in lavur of the protection affcjrded b}^ the commission, or, by 
what comes to the same thing, the absence of criminal intent, 
becomes so much the more irresistible. And even though 
MdioUy invalid, such illegal action coidd not deprive the citi- 
zen of the State of the shield and protection afforded him by 
the action of the State government authorizing lesistance, and 
regarded as still continuing a member of the Federal Union. 

The next proposition is : 

That under the state of facts existing in South Carolina, as 
establit:ihed by the public documents and other evidence in the 
cause, tluise adniinistei'ing the Government of the so-called 
Confederate States constituted the de facto Government which 
replaced the Govern ujent of the United States in those States 
before and at the timeof tiie commission of the acts charged in 
the indictment; and the defendants who are citizens of tiiose 
States wei'e justified by overpowering necessity in submitting to 
that Government, in yielding their allegiance to it, and thence- 
forth in actively aiding and supporting it ; and that the capture 
of the Joseph, having been a belligerent act in a war between 
such de facto Government, and the people of the States which 
had submitted to its authority on the one side, and the United 
States on the other, such defendants cannot be convicted under 
this indictment. 

Now, with reference to that, allow me to call your honors' 
attention to but a single authority, in addition to those which I 
cited in my opening remarks to the Jury. It is the case of 
The United States vs. The Ge?ieralTarkhill, decided by Judge 
Cudwalader, in the United States District Court, in Philadel- 
phia, in July, 1861. He says : 

"The foregoing remarks do not suffice to define the legal character of the 



OF THE SCHOONER SAVANNAH. 159 

contest in question. It is a civil war, as distinguished from such unorgan- 
ized intestine war as occurs in the case of a mere insurrectionary rebellion. 

" Civil war may occur where a nation without an established Government 
is divided into opposing hostile factions, each contending for the acquisition 
of an exclusive administration of her Government. If a simple case of this 
kind should occur at this day, the Governments of the nations not parties to 
the contest might regard it as peculiarly one of civil war. As between the 
contending factions themselves, however, neither could easily regard their 
hostile opponents in the contest otherwise than as mere insurgents engaged 
in unorganized rebellion. Thus, in the language of Sir M. Hale, every suc- 
cess of either party would subject all hostile opponents of the conqueror to 
the penalties of treason. A desire to prevent the frequency of such a result 
was the origin of the rule of law, that allegiance is due to any peaceably 
established Government, though it may have originated in usurpation. The 
statute of 11 H. 7, c. 1 (A. D. 1494), excusing an English subject who has 
yielded obedience, or who has even rendered military service to a Ruler who 
was King in feet, though not in law, was declaratory of a previous principle 
of judicial decision." 

After referring to Bracton, Coke, Hawkins, and Foster, the 
learned Judge proceeds : 

" It has already been stated that a King in whose name justice was admin- 
istered in the Courts of law was usually regarded as in actual possession of 
the Government. 

"Civil war of another kind occurs where an organized hostile faction is 
contending against an established Government, whose laws are still admin- 
istered in all parts of its territory except places in the actual military or 
naval occupation of insurgents or their adherents. 

" In such a case the question has been, whether a place in the actual mili- 
tary occupation of the revolutionary faction, or of its adherents, may, under 
the law of war, be treated by that Government as if the contest was a for- 
eign war and the place occupied by public enemies. In the case of a mari- 
time blockade of such a place, the affirmative of this question was decided in 
England, in the j^ear 183G. It had previously been so decided by the Su- 
prem& Tribunal of Marine, at Lisbon (3 Scott, 201 ; 2 Bingh., N. C, 781)." 

Judge Cadwalader then lefers to Grotius (Prolog., sec. 23), 
citing with approval the statement by Demosthenes of the rule 
of public law in the case of the invasion by Deiopeithes, the 
Athenian commander iu the Ciiersouese, of the dominions of 
Fliilip of Macedon, who had sent a military force to the relief 
of Cardia, when sought to be reduced to submission by Deio- 
peithes — that wherever judicial remedies are not enforceable 
by a Government against its opponents, the proj^er mode of 
restoring its authority is war, — and continues : 

" This doctrine is of obvious applicability to civil war of a third kind, 
which occurs where the exercise of an estabhshed Government's jurisdiction 
has been revolutionarily suspended in one or more territorial Districts, whose 
willing or unwilling submission to the revolutionaiy rule prevents the execu- 
tion of the suspended Government's laws in them, except at points occupied 
by its military or naval forces. The present contest exemplifies a civil war 
of this kind. It w^as also, with specific differences, exemplified in the 
respective contests which resulted in the independence of the United Nether- 
lands and of the United States." 



160 TRIAL OF THE OFFICERS AND CREW 

He then proceeds : 

"Within the limits of two of the States in which so-called ordinances of 
secession have been proclaimed the execution of the laws of the United States 
has not been wholly suppressed. They are enforceable in the AVestern Judi- 
cial District of Virginia, and perhaps in the adjacent Eastern Division of 
Tennessee. In the other nine States which profess to have seceded, includ- 
ing South Carolina, those laws are not enforceable anywhere. 

" The Constitution of the United States prohibits the enactment by Con- 
gress of a bill of attainder, and secures, in all criminal prosecutions, to the 
accused, the right to a speedy public trial, by Jury of the State and District 
wherein the crime shall have been committed, which District must have been 
previously ascertained by law. Ttierefore if a treasonable or other breach of 
allegiance is committed within the hmits of one of these nine States, it is not 
at present punishable in any Court of the United States. This was practi- 
cally shown in a recent case (Greiner's case. Legal Intelligencer^ May 10, 
1861). War is consequently the only means of self-redress to which the 
United States can, in such a case, resort, for the restoration of the constitu- 
tional authority of their Government. 

" The rule of the common law is, that when the regular course of justice 
is interrupted by revolt, rebellion, or insurrection, so that the Courts of jus- 
tice cannot be kept open, civil war exists, and hostilities may be prosecuted 
on the same footing as if those opposing the Government were foreign ene- 
mies invading the land. The converse is also regularly true, that when the 
Courts of a Government are open, it is ordinarily a lime of peace. But though 
the Courts be open, if they are so obstructed and overawed that the laws can- 
not be peaceably enforced, there might perhaps be cases in which this con- 
verse application of the rule would not be admitted. (1 Knapp, 346, 360, 
361 ; 1 Hale, P. C. 347; Co. Litt. 249 &.)" 

Now, if your honors please, the last proposition with which 
I am compelled to trouble you is : 

'■^^ That the Acts of Congress and the Proclamations of the 
President since the outbreak of the present struggle evidence 
the existence of a state of war between the Federal Goverumeut 
and the States calling themselves the Confederate States from a 
time anterior to the performance of the acts charged in the indict- 
ment, ill which all the citizens of those States are involved and 
treated as public enemies of the Federal Governmeut, whether 
they had any agency in initiating the conflict or not; and that 
the natural law of self-preservation, under these circumstances, 
justified the defendants, who are citizens of those States, in the 
commission of the acts charged in the indictment, as a means 
of weakening the power of destruction possessed by the Fede- 
ral Government. 

Now the counsel on the other side, from the intimation 
which he gave when he addressed the Court, intended to treat 
that subject of a de facto Government, or whatever it was, on 
the footing of men under duress, not in danger of their lives, 
joining with rebels and aiding them in a treasonable enter- 
prise. Your honors will perceive that was not the footing on 
which we put it at all. It was the footing on which it stood at 



OF THE SCHOONER SAVANNAH. 161 

one time, when rebellion first broke out, when forts M^ere seized 
— acts which it is no part of the duty of counsel on this trial to 
justify or say anything about, because there is no act connected 
with that part of the struggle which is in evidence on this trial. 
But on that I wish to refer to wliat Judge Cadwalader said in 
another case — that of Greiner — which undoubtedly the learned 
counsel for the Government had in his mind when he drew that 
distinction. Shortly before the late so-called secession of Geor- 
gia, a volunteer military companj^, of which Greiner was a 
member, by order of the Governor, took possession of a fort 
within her limits, over which jurisdiction had been ceded by 
her to tiie United States, and garrisoned it untirher ordinance 
of secession was pi-onmlgated, when, without having encoun- 
tered any hostile resistance, they left it in the possession of her 
Government. A member of this company, Charles A. Grei- 
ner, who had participated in the capture and detention of the 
fort, afterwards visited Pennsylvania, at a period of threatened 
if not actual hostilities between the Confederate States and the 
United States. He was arrested in Philadelphia, under a 
charge of treason. Your honors will very readily perceive 
what a difference there was between that case and this. Judge 
Cadwalader jipplies the rule in reference to that ; and, speak- 
ing of this doctrine of allegiance due to a Government in fact, 
he says : 

"This doctrine is applicable wherever and so long as the duty of alle- 
giance to an existing Government remains unimpaired. When this fort was 
captured, the accused, in the language of the Supreme Court, owed allegiance 
to two Sovereigns, the United States and the State of Georgia (see 14 How. 
20). The duty of allegiance to the United States was co-extensive with the 
constitutional jurisdiction of their Government, and was, to this extent, 
independent of, and paramount to, any duty of allegiance to the State (6 
Wheaton, 381, and 21 Howard, 5]?). His duty of allegiance to the United 
States continued to be thus paramount so long at least as their Government 
was able to maintain its peace through its own Courts of Justice in Georgia, 
and thus extend there to the citizen that protection which affords him secu- 
rity in his allegiance, and is the foundation of his duty of allegiance. Though, 
the subsequent occurrences which have closed these Courts in Georgia may 
have rendered the continuance of such protection within her limits impossi- 
ble at this time, we know that a different state of things existed at the time 
of the hostile occupation of the fort. The revolutionary secession of the State, 
though threatened, had not then been consummated. This party's duty of 
allegiance to the United States, therefore, could not then be affected by 
any conflicting enforced allegiance of the Slate. He could not then, as a 
citizen of Georgia, pretend to be an enemy of the United States, in anj' sense 
of the word 'enemy' which distinguishes its legal meaning from that of 
traitor. Future cases may perhaps require the definition of more precise dis- 
tinctions and possible differences under this head. The pi'esent case is, in my 
opinion, one of no difficulty, so far as the question of probable cause for 
the prosecution is concerned." 

Having decided that, in the present state of things, he 
11 



162 TRIAL OF THE OFFICERS AND GREW 

could not commit the prisoner for trial, to be conveyed to Geor- 
gia, because there were no Courts of the United States there, 
and because it would be a violation of the Constitution of the 
United States — that he could not have a speedy trial — he de- 
cided that, under a subsequent act of Congress, he bad a right 
to require the prisoner to find sureties to be of good behavior 
towards the United States. 

I have thus ended what I had to say upon this subject, with 
but one single exception. 

A great deal will be said, undoubtedly, on the part of the 
prosecution, here, with reference to this being a revolutionary 
overthrow of the Government of the United States in the States 
which have taken these steps. I have only to ask, in reference 
to that — conceding it, for the sake of argument, in its fullest 
extent — what was the adoption of the Constitution of the United 
States but a revolutionary overthrow of the previously existing 
Confederation ? It was done by nine States, without the con- 
sent of four, whose consent was necessary, and the Government 
of the United States went into operation ; and it was a long 
time before at least two of them came in under the new 
Government. 

Mr. Eoarts : Will my learned friend allow me to ask him, 
in that part of his argument which proceeds upon the right of a 
State, yet being a State, to justify the acts of its citizens, to 
explain the proposition that a State can oppose the United 
States, within and under the Constitution, in regard to any law 
of the United Statts about which this essential right of judg- 
ment, whether the aggression of the United States has carried 
it beyond the powers of the Constitution, or not, is claimed to 
exist ? 

Mr. Larocque : I thought I had been very explicit on that. I 
said, in the first place, that I had nothing to do with the ques- 
tion of right or wrong. I said this: That a collision had 
occurred between the government of the State and the Federal 
Government ; that each being sovereign, within the limitation 
of its powers, had a right to judge for itself whether the occa- 
sion for such a collision had occurred, or not; that these 
prisoners, citizens of the States which had decided that such a 
case had occurred, as subjects owing allegiance to two equal 
and co-ordinate sovereigns, which had come into hostile col- 
lision with each other, must exercise, upon their consciences, 
their election to which Sovereign they would adhere; and that, 
whatever may be the unfortunate consequences, they are not 
responsible before the tribunal of the other sovereignty because 
they adhered to one of them ; that they would be no more 
responsible before the criminal tribunals of South Carolina if, 



OF THE SCHOONER SAVANNAH. 163 

in this contest, tbey had adhered to the General Government 
and borne arms against their native State, tlian they are respon- 
sible in the tribunals of the Federal Government because, exer- 
cising their own consciences, they had adhered to the State 
and not to the Federal Government. I say it is like the case of 
a child whose parents disagree, and who is obliged to adhere 
either to his father or his mother ; and that he violates no law 
of God or of man in adhering to either. 

Mr. Smith: If the Court please, I rise for a purpose different 
from the remark that I wish to make in reply t) the last illus- 
tration of my learned friend. I might say that the instance of 
a child is one very parallel to that we might have given — that 
the father is the superior authority, where there is a difference 
between two parents. 

I rise, however, to present to the Court, as one of the 
authorities, or rather a citation which will receive its respectful 
coiisi<leration, the Charge of Mr. Justice Grier, in t!ie case tried 
in Philadelphia ; and also the opinion of Judge Cadwalader, in 
the same case. 

Mr. Brady : Who reported this ? 

Mr. Smith : I received it, by telegraph, from the District 
Attorney of Philadelphia; and it is also printed in a newspaper 
published last evening in Philadelphia. I have compared 
them, and the two accounts perfectly agree. I do not cite them 
as authority, but as entitled to the respectful consideration of 
the Court. 

Mr. Brady : As, now-a-days, what the newspapers publish 
one day they generally contradict the next, 1 think any 
report should be taken with some grains of allowance, at least. 
I suppose I would recognize the style of Judge Grier. 

Mr. Blatchford : I think you will, on examining it. It is 
evidently printed from the manuscript. 

Mr. Smith read the charge of Judge Grier in the case of 
the privateers tried in Philadelphia. 

Mr. Brady: Tell me what question of fact was there left to 
the Jury? 

Mr. Smith : I refer you to Judge Cadwalader's opinion, 
which is much longer. 

Mr. Brady : 1 do not see that there was anything left for 
the Jury. Judge Grier decided that case, — which undoubtedly 
he could do, for he is a very able man. 

Mr. Sullivan put in evi<ience the log-book of the Savannah. 



164 TEIAL OF THE 0FFICEK8 AND CKEW 



AKGUMENT OF ME. MAYER, OF COUNSEL FOR THE 

DEFENCE. 

Mr. Mayer paid : — May it please your honors, — A foreign- 
bom citizen now rises, on behalf of eight of the defendants, 
"who, as it has been conceded by the prosecution, are subjects of 
foreign States. It might ap})ear ahnost superfluons, after the 
full and eloquent argument of onr venerable brother — I was 
almost tempted to say father (Mr. Loed) — for one of the junior 
counsel for the defence to say anytliing. Still, I thought it 
incumbent on me to anticipate a coi)structi«m or interpretation 
which the prosecution may attempt to make, by offering, my- 
self, a proposition. But before reading it, 1 will, as briefly as 
my proposition is brief, state my cumment thereon. 

Let us, in the first place, look at the aspect of the relations 
in which these foreigners stood at the time of their committing 
this alleged offence. They are all sea-faring men. Their va- 
rious crafts had been locked up in the p irt of Charleston by 
the blockade there. Business, as we have heard here in evi- 
dence, was prosti-ated. Nothing was left for them but to enlist 
in the army of the Confederacy, or to become privateers. It 
is certainly a pity that they did not choose the flrst alternative ; 
for, even if they had been caught with arms in tlieir hands, 
their fate would now be far better than it is. They would not 
now be in jeopardy of their lives, threatened with the pains 
and penalties of a law that is not applicable to tliem. But 
being, as 1 said before, inured to the life of seafarers, they 
chose to become privateers. 

We must, however, in judging of their act, place ourselves 
in their position. They were foreigners. As foreigners, they 
bi'onght to this country views and notions as regards their act 
which are widely different from those souglit to be enforced 
liere. They knew the practice and theories of Europe in regard 
to their act. What are those views and theories ? I can state 
them in a very few words, and am sorry that the authorities to 
which I shall refer are in a language which may not be famil- 
iar to your honors. I will, however, state their effect. It is 
this : vVhenever a rebellion in any country has assumed such 
extensive magnitude as no longer to be a simple insurrection, 
which may be put down by police measures or regulations, 
but has come to such a degree that mighty armies are opposed 
to each other, although the revolted portion may not have been 
acknowledged by any nation, yet belligerent rights must be 



OF THE SCHOONER SAVANNAH. 165 

granted to it. This is the notion, or theory, which has entered 
into the mind of every European, to whatever State or nation 
he may belong. I may be permitted to qnote a few historical 
facts to show wliy this is so. When the Netherland Colonies 
revolted against Spain the privateers of the Prince of Orange, 
even before he was elected Admiral General by those Colonies, 
were by most nations recognized. They were only not recog- 
nized by some of those nations against which they committed 
depredations ; and it is a historical fact that a great many of 
those privateers commissioned by the Prince of Orange became 
pirates. 

Another case is furnished by onr own Revolution. It is 
known to all Europeans that, although in the beginning of the 
American Revolution England did not recognize the belliger- 
ent rights of America, yet, after some time, she did recognize 
those rights, even by a Parliamentary Act. I refer to 16 George 
the Third, ch. 5. The same was the case in the French Revo- 
lution; and there I may refer to a very curious fact. England 
recognized the privateers of the revolutionary Government of 
France, so far as those privateers went against other nations; 
but when they cruised against her own comn)erce she did not 
recognize them. She remonstrated with Denmark because 
Denmark had recognized them, and Denmark simply pointed 
to her (England's) own course. 

All these facts are very well known to every European, 
and it is with a knowledge of these facts that every European 
looks upon a levolution. To express it in a veiy short sen- 
tence, it is the theory of " Let us have fair play." 

If your honors please, I may say that this notion of bellig- 
erent rights in revolution has entered into the flesh and blood 
of every European to such an extent, that the only nation 
which does not allow, in revolution, that fair play, is despised 
and hated, except by these United States. I mean Russia. 
Russia is now very friendly towards this Union ; not, however, I 
may be permitted to state — reversing an oft-quoted passage of 
Shakspeare — not because she loves Rome more, but that she 
loves Cajsar less. It is not out of love for this country, but be- 
cause the diplomatists of Russia — the farthest-seeing diplomatists 
of Europe — hope that England and France will interiere in the 
contest between the-e States, and that she may get an oppor- 
tunity to return the compliment to these two powers which she 
received from them at Sebastopol. With a knowledge of these 
facts, and with these European theories, these foreigners, now 
indicted under the Act of 1790, entered into this privateering 
business. 

They saw, as I said before, Charleston blockaled. To them 
a blockade is an act of belligerent rights. They saw a consti- 



166 TKIAL OF THE OFFICERS AND CEEW 

tutional government adopted in the Confederate States. They 
never dreamed that, if they wished to embark in this priva- 
teering business, they should be treated as pirates. They knew 
well, as every European knows who has any tnowledge of 
international law, that there are two kinds of piracy — piracy 
by international law, and piracy under municipal law — muni- 
cipal piracy, or, as Mr. Lord called it yesterday, statutory piracy. 
And now I refer, as to the right of one nation makiuij; any- 
thing piracy that is not piracy by the law of nations, to 
Wheaton, volume 6, page 85 ; 1st Fhilliinore, 381 ; and to 1st 
Kent, 195. I will not take up the time of your honors in read- 
ing all these passages, but I hold here the last work on inter- 
national law. It is, however, written in the German language. 
It is of unboun<led authority on the Continent, and has been 
translated into French and Greek. It is very frequently re- 
ferred to by all those authors whom I have just quoted. It 
states this theory in two lines, which I will read to your honors 
in a translation : 

" Laws of individual nations (as, for instance, the French law of the 10th 
April, 1825) may, so far as their own subjects are concerned, either alter the 
meaning of piracy, or extend its operation ; but they are not allowed to do 
that to the prejudice of other States." 

I refer to Hefter on Modern International Law, 4th ed., page 
191. 

From this we can see that there are two kinds of piracy — 
national piracy and municipal piracy. No State can be pre- 
vented by any law of nations from making anything piracy 
which that State pleases. For instance, there is a law of piracy 
in Spain that any peison committing frauds in matters of insur- 
ance is a piiate ; or that any one even cutting the nets of a sim- 
ple fisherman is a pirate. I might quote other instances. In our 
own country tlie slave-trade is a piracy ; but that does not make 
it piracy everywhere, hi some of the States of Germany 
slave-trade is kidnapijing, and is punished as such. 

What, now, is the relation of these foreigners to this munici- 
pal piracy, under the indictment with which the}^ stand charged ? 
That it is municipal pii'acy, I need not say anything further, af- 
ter the full argument of our friend and father, Mr. Lord. The 
law is very distinct. It is, " if any citizen shall do s ) and so." 
But how do these men come in ? Here I come to the point 
why I thought it fit and incumbent on me to offer my propo- 
sitions. Ihe prosecution will certainly stretch, as I said be- 
fore, the construction and interpretation of the law in this 
way: It will say, " These men were apprehended on an 
American bottom, and, being on an American bottom, they 
were on American soil, and as, according to criminal law, 
they are protected by our law, so they are bound by our 



OF THE SCHOONER SAVANNAH. 167 

law." This, I apprehend, is the theory on which the pros- 
ecution will urge tliat these foreigners — notwithstanding 
the distinct expression of the law, "if any citizen" — shall 
be found guilty under this indictment. But as they are for- 
eigners to this law, so is this law foreign to them. And there 
is a principle in criminal law which says — I read from section 
238 of Bishop's Criminal Law, vol. I. — 

" It is a general principle that every man is presunaed to know the laws 
of the country in which he dwells, or, if resident abroad, transacts business. 
And within certain limits, not clearly defined, this presumption is conclusive. 
Its conclusive character rests on considerations of public policy, and, of 
course, it cannot extend beyond this foundation, though we may not easily 
say, on the authorities, precisely how far the foundation of policy extends. 
We may safely, however, lay down the doctrine that in no case may one 
enter a Court of Justice to which he has been summoned, in either a civil or 
criminal proceeding, with the sole and naked defence that when he did the 
thing complained of he did not know of the existence of the law he violated. 
Ignorantia juris non excusat is, therefore, a principle of our jurisprudence, 
as it is of the Roman, from which it is derived." 

This rule, so essential to the ordinary administration of 
justice, cannot be deemed strange in criminal cases generally, 
because most indictable wrongs are mala iii se, and, therefore, 
offenders are still conscious of violating the law "written in 
even' man's iieart." 

But — and now I refer to the note to this section, which says — 
"ignorance of the law of foreign countries is, with tlie excep- 
tion noticed in the text, ignorance of fact which persons are 
not held to know." The author cites the following authorities : 
Story's Equity Jurisprudence, sections 110, 23; American 
Jurisprudence, sections 146 and 347 ; to which I would add 8 
Barbour'8 Supreme Court Reports, 838 and 839, and the case 
of Rex versus Lynn, 2d Term Report, 233. 

Now, I contend that, as this law under which the indict- 
ment is drawn is a law creating municpal piracy, so it is a law 
foreign to these foreigners ; that, therefore, as to them, it is a 
matter of fact, and, according to the criminal theory, igno- 
rantia facti excusat^ these foreigners cannot be found guilty 
under this law. Municipal piracy, to carry out the doctrine of 
this theory, is not malum in se ', for, as I said before, interna- 
tional law does not acknowledge it as such, but is opposed to 
it its to foreigners ; and if I understand well the decision of the 
Supreme Court, it is even acknowdedged, in the case of the 
United States versus Palmer, 3d Wheaton, 610, that the Con- 
gress of the United States cannot make that piracy which is 
not piracy by the law of natiims, in order to give jurisdiction 
to its Courts over such offences. 

Besides, this knowledge of facts enters a good deal into the 
theory of intent. So much has been said about the piratical in- 



168 TEIAL OF THE OFFICEES AND CKEW 

tent, that I can pass this by in silence. But, with reference to 
the theory that foreigners are to be taken as ignorant of facts, 
I will give an illustrati'm that was suggested to irie this morn- 
ing by an incident which occurred on my way to the Court. 
A little hoy in the street handed to me a card of advertise- 
ment which had all the appearance of a bank note. Now, I 
remembered at the moment that about three years ago the 
Legislature of South Carolina ];)assed a law making the issuing 
and publication of such advertisements — such business cards — 
an offence, punishable, if I am not mistaken, both by fine and 
imprisonment. Now suppose that the great American show- 
man at the comer of Ann and Broadway should carry his 
" What is it" or Hippopotamus down to Charleston, and issue 
such an advertisement, and he should be brought before the 
Court of South Carolina; would it not be unjust, as the offence 
is not maluTn in se, to find him guilty ? Certainly it Avould 
be ; and, according to the same theory, I cannot imagine, by 
any possible process of reasoning, that these prisoners should 
be deemed guilty under an indictment, when the law was en- 
tirely foreign to them. They may justly say, as they might 
have known, and did perhaps know, that our country, too, 
holds to this simple doctrine : "Let us have fair play." So 
when certain provinces rose up in revolt against the parent or 
original Government, to conquer, as it were, their independ- 
ence, this country maintained a state of neutrality, and granted 
to both parties belligerent rights. Many such cases have been 
cited ; but the most striking one, I am astonished, has not been 
cited. I will refer to it now. It is the case of the United States 
against the Miramon and the Havana, tried before the District 
Court of New Orleans. These two steamers were commissioned 
vessels, belonging to an authority not only not recognized by the 
Government of the United States, but opposed to the Govern- 
ment which had been recognized by ours. They were commis- 
sioned ships of General Miramon, and were seized and libeled; 
yet the}'- were released. Perhaps it would have been better 
for us if they had not been released, because they have since 
given us some trouble — one of them (the Havana) having been 
converted into the ubiquitous Sumter, which is rather a terror 
to our mercantile marine. 

I will not further trespass upon your honors' time, but will 
immediately read ni}' proposition. That proposition is, that, 
" As to the defendants who are shown to have been citizens of 
foreign States at the date of the alleged offence, the law is, that 
they cannot be found guilty of piracy under the present in- 
dictment, which includes only piracy by municipal law — the 
ignorance of which, as to foreigners, is not ignorantia legis, but 



OF THE SCHOONEK SAVANNAH. 169 

ignorantia facti. Tlierefore the defendant Clarke, and the 
other foreigners, shonld be acquitted." 

Before, however, I ck)se my few remarks, I must, in justice 
to my immediate client, William Charles Clarke, add another 
observation. I have, by submitting to your honors the propo- 
sition, separated, as it were, his case and that of the other for- 
eigners from the rest cf the prisoners. I did so on my own re- 
sponsibility ; for he let me understand that he did not wish to 
see his case separated from the others. He expressed that sen- 
timent to me in a very forcible German proverb. It was, " Mit- 
gegangeii, mitgefangen^ mitgehangen ,^"* Yet I thought it incum- 
bent on me, us his counsel, to urge all those circumstances that 
might be benelicial to him and to those in the same position, — 
trusting that the unity and identity of the fate of all thus sev- 
ered by me may be restored in this wise : that the case of these 
foreigners may be made also the case of the four citizens, both 
by the ruling of your honors and the verdict of general acquit- 
tal of the Jury. 

Mr. Brady — Before Mr. Evarts proceeds to close the legal 
considerations involved in the case I feel it proper to advise 
him of a point for which I will contend, and on the discussion 
of which I do not now intend to enter. 1 will not admit that 
Congress bad the power, under the Constitution of the United 
States, to pass the ninth section of the Act of 1790, which, 
upon my construction of it, would punish as piracy the act of 
an American citizen who should take a commission from En- 
gland or France and then commit an act of hostility on an 
American ship or on an American citizen on the high seas. 
The argument is in a nutshell ; though, of course, I shall give 
some illustrations at the proper time. It is this — that there is 
no common-law jurisdiction of offences in this Government; 
that it can take cognizance of no crimes except those which 
are created by Act of Congress, including piracy ; and that 
the authority of the Constitution conferred upon Congress, to 
pass laws defining piracy and to punish oiFences against the 
law of nations, relates only to such offences as were then known, 
and does not invest the Legislature of the Federal Government 
with authority, under pretence of defining well-known offences, 
to create other and new offences, as is attempted to be done 
in the Act of 1790. 



* " Gone along, caught along, hanged along." 



170 TRIAL OF THE OFFICERS AND CKEW 



ARGUMENT OF MR. EYARTS. 

Mr. Evarts said : If the Court please, I shall hardly find it 
necessary, in stating the propositions of law for the Government, 
to consume as much time as has heen, very usefully and very 
properly, employed by the various counsel for the prisoners 
in asking your attention to the views which they deem impor- 
tant and applicable in defence of their clients. The affirma- 
tive ]>ropositions to which the Government has occasion to ask 
the assent of the Court, in submitting this case to the Jury, are 
very few and simple. Your honors cannot have failed to no- 
tice that all the manifold, and more or less vague and uncer- 
tain, views of ethics, of government, of politics, of moral qual- 
ifications, and of prohiljited crimes, which have entered into 
the discussion of the particular transaction whose actual pro- 
portions and lineaments have been displayed before the Court 
and Jiay, are, in their nature, affirmative propositions, meet- 
ing what is an apparently clear and simple case on the part of 
the Government, and requiring i) be encountered on our part 
more by criticism than by any new and positive representation 
of what the law is which is to govern this case under the ju- 
risprudence of the United States. 

I shall first ask your honors' attention to the question of 
jurisdiction, which, of course, separates itself from all the fea- 
tures and circumstances of the particular crime. Your hon- 
ors will notice that this question of jurisdiction does not, in 
the least, connect itself with the subject or circumstances of 
the crime, as going to make up its completeness, under the 
general principles which give the locality of the crime as the 
locality o^ iliQ trial. With these principles, whether of right 
and justice, or of convenience for the adequate and complete 
ascertainment of the facts of an alleged crime, we have no con- 
cern here. The crime complained of is one which has no lo- 
cality within the territorial jurisdiction of the United States, 
and assigns for itself, in its own circumstances, no place of trial. 
From the fact that the crime was completed on the high seas, 
equally remote, perhaps, fmm any District the Courts of which 
might have cognizance of the transaction, there are no indica- 
tions whatever, in its own circumstances, pointing out the ju- 
risdiction for its trial. It is, therefore, wholly with the Gov- 
ernment, finding a crime which gives, of itself, no indication 
of where, on any principle, it should be tried, to determine 
which of all the Districts of the United States in which its 



OF THE SCHOONER SAVANNAH. 171 

Courts of Judicature are open. — all having an equal judicial 
authority, and all being equally suitable in the arrangement 
of the judicial establishment of the Union, — it is entirely com- 
petent, I say, for the Government to determine, on reasons of 
its own convenience, which District, out of the many, shall 
gain the jurisdiction, and upon what circumstances the com- 
pleteness of that jurisdiction shall depend. 

It is not at all a right of the defendant to claim a trial be- 
fore a particular tribunal, nor are th re any considerations 
which should prevent the selection of the place of jurisdiction 
through whatever casual agency may be employed in that se- 
lection. In the eye of the law, the Judges are alike, and the 
Districts are alike. Congress, considering the matter thus 
wholly open, in order that there might be no contest open for 
all the Districts, and assuming that there would be some 
natural circumstance likely to attend the bringing of the of- 
fender within the reach of civil process, wh.en a crime had 
been committed outside of the civil process of every nation, de- 
termined, by the lith section of the Crimes Act of March 3d, 
1825, which gives the law of jurisdiction in this case, that the 
trial should be " had in the District where the offender is ap- 
prehended, or into which he may be first brought." Nor is it 
a tiue construction of th'S statute to say that the law intends 
that the cognizance of the crime — all of the Districts being 
equally competent to try it, and there being nothing in the 
crime itself assigning its locality as the place of trial — shall 
belong exclusively to that Court which shall first happen to 
get jurisdiction by the actual bringing of the offender within 
its operation. If that be true, it is apparent that neither one 
of the Districts thus differently described has jurisdiction ex- 
clusively of the other. JNow, the language of the statute cer- 
tainly gives this double place of trial in the alternative; and 
it is very difiicult to say what principle either of right, of con- 
venience, or of judicial regularity, is offended by such a con- 
struction and application of the statute. Accordingly, I un- 
derstand it to have been held by Mr. Justice Story, in the case 
of The United States vs. Thompson (1 Sumner, 168), that there 
were these alternative places of trial ; and, as a matter of rea- 
soning, he finds that such arrangement is suitable to the gen- 
eral principles of jurisprudence, and to the general purposes of 
the statute. Now, if this be so, then, as we come, in this Dis- 
trict, within one of the alternatives of the statute, and as this 
District is confessedly the one in which the apprehension of 
the offenders took place, we are clear of any difiiculty about 
jurisdiction. 

The case of Hicks, decided here, was, perhaps, not entirely 
parallel to the one now under consideration. But, let us see 



172 TRIAL OF THE OFFICERS AND CKEW 

liow far the views and principles there adopted go to deter- 
mine this case, in the construction ot the statute in any of its 
parts. Hicks had committed a crime on the high seas — in the 
immediate vicinity, I believe, of our own waters. Making his 
way to the land, he proceeded unmolested to Providence, in 
Khode Island. The officers of justice of the United States,' get- 
ting on his track, pursued him to Rhode Island, and there he 
was f )und, unquestionably within the District of Rhode Island. 
They did not obtain his appreliension by legal process there, 
and thus bring liim within the actual exercise of the power of 
a Court of the District of Rhode Island ; but they persuaded 
him, or in some way brought about his concurrence, to come 
witii them into the District of New York, and here the process 
of this Court was fastened upon him, and he was brought to 
trial on the capital charge of piracy. On a preliminary plea 
to the jurisdiciion of the Court, and on an agreed state of facts, 
to the eifect, I believe, of what I have stated, the matter was 
considerably argued before your honor. Judge ISTelson, on be- 
half of the prisoner; but your honor, as I lind by the report, 
relieved the District Attorney from the necessity of replying, 
considering the matter as settled, under the facts of the case, 
in the practice of the Court. Now, the argument there was, 
that the District of Rhode Island was the District where the 
offender was apprehended ; and it could not be contended that 
the Southern District of New York was the one into which he 
was fii'st brought by means other tiian those of legal process. 
And the argument was, that the crime for which he was to be 
tried here, being a fehmy, any control of his person by private 
individuals was a lawful apprehension, and one which might 
be carried out by force, if necessary; and that, therefore, there 
was, in entire compliance with the requisition of the statute, an 
apprehension within the District of Rhode Island. If, under 
the circumstances of that case, that view had been sustained 
by the Court, it could not have been, I think, pretended that 
the Courts of this District had concurrent jurisdiction, because 
of Hicks having been first brought into this District. The 
whole inquiiy turned on the question whether he was appre- 
hended in the District of Rhode Island. 

In considering the case, your honor. Judge Nelson, recog- 
nized, as I suppose, the view of the alternative jurisdiction 
which I have stated. You said to the District Attorney : " We 
will not trouble you, Mr. Hunt. The question in this case is 
not a new one. It is one that has been considered and decided 
by several members of the Supreme Court, in the course of the 
discharge of their official duties. It has repeatedly arisen in 
cases of oflfences upon the high seas, and the settled practice 
and construction of the Act of Congress is, that in such cases 



OF THE SCHOONER SAYANNAH. 173 

the Court has jurisdiction of the case, in the one alternative, in 
the District into which the oliender is first brought from the 
high seas — meiming, into which he is first brouglit by authority 
of law and by authority of the Government. In cases where 
the offender iias been sent home under the authority of the 
Government, the Courts of the District into which he is first 
brought, nnder that authority, are vested with jurisdiction to 
try the case. Tlie other alternative is, the District in M'hicli tlie 
prisoner is first apprehended — meaning an apprehension nnder 
the authority of law — under the authority of legal process. 
This interpretation of the Statute rejects the idea of a private 
arrest, and refers only to an arrest under the authority of law 
and nnder legal process. It is quite clear, in this case, that no 
District except the Southern District of New York possesses 
jurisdiction of the offence ; for here the prisoner was first appre- 
hended by process of law. We do not inquire into anyihing 
antecedent to the arrest nnder the warrant in this District, be- 
cause it has no bearing whatever upon the question of the ju- 
risdiction of the Court. We have no doubt, therefore, that the 
Court has jurisdiction of the case, and that this is the only Dis- 
trict in which the prisoner can be tried." 

Now I owe the Court and my learned friend, Mr. Lord, an 
apology for having supposed and stated that the provisions of 
the Act of March od, 1819, giving certain powers to the naval 
officers of the United States "' to protect the commerce of the 
United States," as is the title of the Act, were not now in lorce. 
I was misled. The Act itself was but temporary in its charac- 
ter, being but of a year's duration. By the Act of May 15th, 
1820, the first four sections of the Act of March 3d, I8ly, were 
temporarily lenewed. But afterwards, by she Act of January 
30th, 1823, those four sections were made a part of the perma- 
nent statutes of the country. The substantial j^art of the Act 
of March 3d, 1819, namely, the fifth section, which defined and 
punished the crime of piracy, was repealed, and replaced by the 
Act of May 15th, 1820, and has never reappeared in our stat- 
utes. 

Judge Nelson : It is the fifth section of the Act of 1819 
that is repealed. 

Mr. Evaris: Yes; that Act is found at page 510 of the 
3d volume of the Statutes at Large. 

Mi\ Lord : All that relates to the apprehension of offend- 
ers is in force. 

Mr. Evarts : Yes ; that is all in force. The Act is entitled, 
" An Act to protect the Commerce of the United States, and 
punish the Crime of Piracy." The first section provides, that 



174 TRIAL OF THE OFFICERS AND CREW 

" the President of the United States be, and hereby is, author- 
ized and requested to employ so many of the public armed ves- 
sels as, in his judgment, the service may require, with suitable 
instructions to the commanders thereof, in protecting the mer- 
chant vessels of the United States and their crews from pirat- 
ical aggressions and depredations," There is nothing in that 
section which is pertinent to this case. Tiie second section pro- 
vides, '' that the President of the United States be, and hereby 
is, authorized to instruct the commanders of the public armed 
vessels of the United States to subdue, seize, take, and send into 
any port of the United States, anv armed vessel or boat, or any 
vessel or boat, the crew whereof shall be armed, and which 
shall have attempted or committed any piratical aggression, 
search, restraint, depredation, or seizure, upon any vessel of the 
United States or of citizens thereof, or upon any other vessel, 
and also to retake any vessel of the United States or its citi- 
zens which may have been unlawfully captured upon the high 
seas." 

This, your honors will notice, is entirely confined to au- 
thority to subdue the vessel and take possession of it, and send 
it in for the adjudication and forfeiture which are provided in 
the fourth section. 

The third section gives the right to meichant vessels to 
defend themselves against pirates. 

There is nothing in the Act which gives to the officers of the 
Governr^ent the power, or enjoins on them the duty, of appre- 
hending die pirates. 1 will now ask your honors' attention to 
the distinction between this Act and the powers conferred by 
the slave-trading Act. 

Judge Nelson: The Act of 1819 gives to the commanders 
authority to bring home prisoners, — does it not ? 

Mr. Evaris : It does not, in terms, say anything about 
them. That is the point to which I ask your honors' attention. 
The Act instructs the commanders of public armed vessels to 
subdue, seize, take, and send into any port of the United 
States, any armed vessel or boat, or any vessel or boat, the 
crew whereof is armed, and that may liave attempted or com- 
mitted any piratical aggression, &c. There is nothing said as 
to the arrest of the criminals. It is a question of construction. 

Judge Nelson : It is not specific in that respect. 

Mr. Evarts : No, sir, it is not specific. ISTow, in the Act of 
March 3d, 1819, entitled, "An Act in addition to the Acts pro- 
hibiting the slave trade," which will be found at page 532 of the 
3d volume of the Statutes at Large, a general authority is given 
to the President, " whenever he shall deem it expedient, to cause 
any of the armed vessels of the United States to be employed 



OF THE SCHOONER SAVANNAH. 175 

to cruise on any of the coasts of the United States or Territo- 
ries thereof, or on tlie coast of Africa, or elsewhere," " and to 
instruct and direct the commanders of all armed vessels of the 
United States to seize, take, and bring into any port of the 
United States, all ships or vessels of the United States, where- 
soever found," engaged in the slave tra<le. And then comes 
this distinct provision in reference to the appreliension and the 
bringing in for adjudication of persons found on board of such 
vessels. It is the last clause of the first section : " And pro- 
vided further, that the commanders of such commissioned 
vessels do cause to be apprehended and taken into custody 
every person found on board of such vessel so seized and taken, 
being of the officers or crew tiiereof, and him or them convey, 
as soon as conveniently may be, to the civil authority of the 
United States, to be proceeded against in due course of law, in 
some of the Districts thereof." 

This Act is the one referred to by Judge Sprague in the 
case of The United States vs. Bird {Sprayue's Decisions, 29y). 

Judge Nelson : There is limitation to that Act, is there ? 

Mr. Evarts : No, sir; it is unlimited in duration, and a 
part of the law now administered. Now, I need not ask your 
honors' attention to the familiar act which gives to Consuls of 
the United States direct authority to take offenders into custody 
and detain them, and send them by the first convenient vessel 
to the United States, to be delivered to the civil authorities to 
be proceeded against. ^''' 

Now, my proposition is this, — that neither under the slave- 
trading Act, nor under the Act for the prevention and punish- 
ment of piracy passed in 1819, does the extra-territorial seizure, 
control and transmission of offenders, exclude the plain terms 
of the alternative of the statute, which makes jurisdiction 
' sonde it, not on apprehension merely, but on apprehension 
" District ; and that, even though there is a governmental 
tion of the offender into a District, making that District, 
er sense, the one into which he is first brought, yet that 
in the lea>t displace the altei-native of jurisdiction of 
ihension within a District, there having been no prior 
J. . . nsion, by process, within any other District, as the con- 
tsu;. ana tion and completion of the delivery of the offender to the 
^ '■ thorities for the purpose of a trial, the transaction hav- 
:j ai instituted on the high seas or in a foreign port. 

j ,).'. , on the facts in this case, there is no room for disputing 
th'vt tJ[i3 first apprehension was within this District. Nor can 
1 deti, that the seizure of these persons on the high seas was 
33" adr by an armed vessel of the United States, either under 
tl :e ^r'lieral right which the law of nations gives both to pub- 
h • u.L private vessels to seize pirates, or under the implied 



176 TRIAL OF THE OFFICEKS AND CKEW 

riglit and power to do so, certainly so far as to make it justifi- 
able on the part of commanders of cruisers, by virtue of the 
provision of the Act of 1819 wliicli authorizes them to send in 
a piratical vessel. These men were sent in, in the course of 
such active intervention, by an armed vessel of the United 
States. But I submit to your honors, that the provisions of 
that Act, which thus incidentally include, as it were, the trans- 
mission of the ship's company of a pirate, because they are to 
be subdued, and the ship is to be sent in, cannot be turned, by 
any process of reasoning, into anything that can be called a 
legal apprehension. I am satisfied that your honor, Judge 
Kelson's view, that the term " apprehension" is only meant to 
apply to the service of judicial process within a District, is en- 
tirely sound. 

The principal argument and the principal authority relied 
on to displace the jurisdiction thus plainly acquired under one 
alternative of the statute, denies, really, that there is any alter- 
native, or that there can possibly be two Districts, either one 
of which may rightfully have jurisdiction. That, 1 take it, is 
the substance of the proposition. It is, that the alternative 
gives to one of the two exclusive jurisdiction ; and that, when- 
ever facts have occurred — whether jurisdiction has been exer- 
cised or not — which give to the one District jurisdiction and 
an opportunity to exercise it, then, by the prior concurrence of 
all the circumstances which fix the statutory jurisdiction on 
that District, the possibility of the occurrence of any new cir- 
cumstances to give jurisdiction in the other and alternative 
District is displaced. 

The case uf The United States vs. Town send has been 
brought to your honors' attention in the manuscript record of 
the preliminary proceedings. The prisoner, whu had been 
taken and brought into Key West, where the vessel stopped, 
as we are told, for the temporary purpose of supplies, was 
thence brought into Massachusetts. It is the record of a pro- 
ceeding wherein Judge Sprague, with the concurrence of his 
associate, Mr. Justice Clifford, of the Supreme Court, sent the 
prisoner, in that predicament, back to Key West for trial, and 
would not permit an indictment to be found against him in 
the District of Massachusetts. We have no knowledge of the 
facts of that case, except what are contained in this record. 
Now, jour honors will notice, in the first place, tliat this is not 
a judicial determination as to the right of jurisdiction of" tlie 
Massachusetts Court, necessarily ; but that, on the theory which 
I present, that there are two alternative jurisdictions, it may 
have been only a prudent and cautious exercise of the discre- 
tion of that Court, preliminary to indictment, that this mai 
should be sent, on his own application, to the District of Floi-- 



OF THE SCHOONER SAVANNAH. 177 

ida for trial. In other words, he interposed an objection that 
he was entitled to a trial in Key West; and the Court, affirm- 
ing the opinion that that District had jurisdiction of the crime, 
determined that it would send him there for trial, and that it 
would not exercise its own jurisdiction, which might be made 
subject to some question. And yet it is not t > be denied that 
Judge Sprague is apparently of the opinion that there are not 
two alternative places of jurisdiction, neither one exclusive of 
the other; but that they are only alternative as respects the 
one or the other which is the first to gain jurisdiction. It is a 
little diflicult to see, on this view, how there can be any two 
places, rightfully described as separate places, one of which is 
the place into which the prisoner is first brought, and the other 
of which is the place where he is first apprehended; because, 
in the very nature of the case, the moment you raise the point 
that the offender has been in two Districts, and that in the 
latter of them he is apprehended, then it follows that he has 
passed through the former; and the statute is really reduced to 
this — that the offender must be indicted in the District into 
which he is first brought. There cannot then be two different 
Districts, into one of which he is brought, within the meaning 
of the law, and in the other of which he is apprehended ; be- 
cause, that into which he is first brought must necessarily pre- 
cede, in time, that in which he is first apprehended, and he 
could not have been apprehended before, in a District other 
than that into which he is first brought. So that you neces- 
sarily reduce the statute to a fixing of the place of trial in the 
District into Mdiich the offender is first brought. 

The case of Smith — the trial just terminated in Philadel- 
phia, in which the prisoner was tried and convicted before the 
Circuit Court of the United States — is an authority of the 
two Judges of that Court on this very point, the circumstances 
of a prior introduction of the prisoner wathin the Eastern District 
of Virginia being much more distinct than in this case. The 
capturing vessel was a steamer, which took the prize into 
Hampton Roads. The defendant and the others of the prize 
crew were kept as prisoners on board this war steamer, which, 
after anchoring in Hampton Roads, near Fortress Monroe, 
went a short distance up the Potomac, returned, and aiiain 
anchored in Hampton Roads, after which she brought the 
prisoners, including the defendant, into Philadelphia, where 
they were taken into the custody of the Marshal. Now, un- 
questionably, geographically, that prisoner was within the State 
of Virginia, and within the Eastern District of Virginia, rather 
more d.stinctly than in the case now on trial. In that case, the 
Court said — " One of the points of law on which counsel for 
the defence requests instruction to the Jury is, that the Court 
12 



178 TRIAL OF THE OFFICERS AND CREW 

has no jurisdiction of the case ; because, after his apprehension 
on the high seas, he was first bron2;ht into another District, 
meaning the Eastern District of Virginia, and onght to be 
there tried. This instruction cannot be given. When he was 
taken prisoner, and was detained in the capturing vessel, he 
was not apprehended for trial, Avithin the meaning of the Act 
of Congress. His first apprehension for that purpose, of which 
there is any evidence, was at Philadelphia, after his arrival in 
this District. Whether he had been previously brought into 
another District, within the meaning of the Act, is immaterial" 
— recognizing, the doctrine of two alternative jurisdictions, 
neither exclusive of the other. " It has been decided that, 
under tliis law, a person, first brought into one District, and 
afterwards apprehended in another, may be tried in the latter 
District. Therefore, if you believe the testimony on the sub- 
ject, this Court has jurisdiction of the case." 

Now, your honors very easily understand, that without any 
election or purpose on the p:irt of any authority, civil or 
naval, representing the Government, a ])risoner may be brought 
into a District, yet never come, in any sense, under the judi- 
cial cognizance of that District. Iti this case, these prisoners 
might have escaped from the Harriet Lane, and have fled to 
Massachusetts, or Pennsylvania, or wherever else their fortune 
should have carried them, and might there have been first 
apprehended. ISTow, what is there in the nature of the juris- 
prudence of the United States, in respect of a crime committed 
outside of both Districts, which should prevent the jurisdiction 
of Massachusetts being just as efiective as the jurisdiction of 
New York? If such be the law, I have no occasion to argue 
any further. But the decision of Judge Sprague is, in my 
judgment, quite opposed to that view of the law ; and I, must, 
therefore, present to your honors some considerations wliich, 
in my judgment, make this the District, in the intendment of 
the statute, into which these offenders were first brought, as 
well as the District in which they were first apprehended. 

Tlie alleged prior introduction of these persons within any 
other Judicial District of the United States, within the mean- 
ing of the statute, is shown by the evidence of what occurred 
in reference to the transit of the Minnesota, after she had taken 
til em on board from the capturing vessel, the Perry, off* the 
coast of South Carolina. She anchored oft' Fortress Monroe, just 
opposite Hampton Roads, and there transferred these prisoners 
to the Harriet Lane, which brought them into this District. 

Now, it is said that that incident of the anchorage of the 
Minnesota in or near Hampton Roads, and the transhipment 
of the prisoners to another vessel, which the exigencies of the 
naval service sent to New York, did fulfill the terms of the law 



OF THE SCHOONER SAVANNAH. 179 

in reference to the introduction of those offenders within a Dis- 
trict ot the United States, and that they were, therefore, first 
brought into the Eastern District of Virginia ; and. if that cir- 
cumstance displaces the alternative jurisdiction, and thereby 
Virginia became the exclusive District of jurisdiction, this trial 
cannot be valid, and must result in some other disposition of 
these j)risoners than a verdict of guilty, if, on. the merits of the 
case, such a verdict should be warranted. 

What are the traits and circumstances of that transmission? 
I understood my learned friend, Mr. Lord, to concede that he 
would not argue that the mere transit of the keel of the vessel 
transporting the prisoners, in the course of its voyage to a port 
of destination, through the waters of another District, was an 
importation or introduction of tlie offenders into that District, 
so as to make it the place of trial. Take, for instance, the case 
of a vessel making a voyage from Charleston to New York. 
For aught I know, certainly, within the practicability of navi- 
gation, her course may be within a marine league of the shore 
of North Carolina, of the shore of Virginia, of the shore of Ma- 
ryland, and of the shore of New Jersey, before making the port 
which is the termination of her transit. Well, my learned 
friends say that they do not claim that this local position of a 
vessel within a marine league while she is sailing along, is, 
within any sensible view of the statute, an introduction into the 
District, so as to found a jurisdiction. 

Let us see, if your honors please, whether the transit of 
these prisoners from the capturing vessel to the Marshal's office 
in New York was not simply part of the continuous voyage of 
the vessel from one point to the other. Where was the Minne- 
sota, and on what employment and duty, at the time she re- 
ceived these prisoners on board? She was the flagship, as the 
Commodore has told us, of the Atlantic Blockading Squadron, 
and her whole duty was as a cruiser or blockading ship, at sea, 
in discharge of the duty assigned to her. 

1 take it for granted that my learned friends will not con- 
tend that a vessel, pursuing her voyage continuously along the 
coast of North Carolina and the coast of Virginia, introduces an 
offender within a District by stopping, either under any stress 
of navigation, or for any object unconnected with any purpose 
to terminate her voyage, or tliat tlie fact other being becalmed, 
or of her ha/ing anchored off the coast to get water or supplies, 
and having then pursued her voyage continuously to New York, 
would alter tlie character of the transit, in any legal construc- 
tion that it should receive. 

Now, what did the Minnesota do ? The Commodore took the 
prisoners on board that vessel, as he tells you, for the purpose 
of sending them to New Y'ork by the first naval vessel that he 



180 TRLAX OF THE OmCEES AND CKEW 

should be able to detacli from the service. Did he, in the in- 
terval between the capture and the complete transmission and 
reception of the prisoners here, ever make a port or a landing 
from his vessel, or ever depart from the design of the voyage 
on which he was engaged ? No. lie was on his cruise, bound 
to no port, always at sea, and only in such relations to the land 
as the performance of his duty to blockade at such points as he 
saw fit, whether at Charleston or the Capes of Virginia, re- 
quired him to be in. And there is no difference, in the quality 
of the act, arising from his having stopped at Hampton Roads, 
and thence sent forw^ard the prisoners by the Harriet Lane, be- 
cause she was the first vessel that was going to New York — 
going, as has been stated, for a change of her armament and 
for repairs. 

Now, 1 submit to your honors, that there is nothing, either 
in the design or the act of this blockading vessel, the Minne- 
sota, or of the Harriet Lane, that causes the course of trans- 
mission of these prisoners to the point of their arrest in this 
District to differ from what it would have been if, with an 
even keel, and without any interruption, the capturing vessel, 
the Perry, had started for New York, and had, in the course of 
her navigation, come within the line of a marine league from 
the shore of some District of the United States, and had, per- 
chance, anchored there, for the purpose of replenishing her 
supplies for the voyage. In other words, in order to make 
out, within the terms of the statute, a bringing into a District 
of the United States, so as to make it a District of jurisdiction, 
within the sense of the statute, it is impossible for the Court 
to fail to require the ingredient of a voyage into a port, at least 
as a place of rest and a termination of the passage of the ves- 
sel, temporary or otherwise. That is requisite, in order to 
make an introduction within a District. And I cannot imagine 
how his honor, Judge Spnigne, or his honor, Judge Clifford, 
could, in the case before them, have given any such significance 
to the prior arrival of the vessel of the United States at Key 
West; for, it was but a stopping at an open roadstead for the 
purpose, not of a port, but of continuing at sea or in the sea 
service of the country. 

Your honors will notice that, by such a construction of 
the Act, instead of making the place where jurisdiction shall 
be acquired dependent on some intelligent purpose, in the dis- 
cretion of the officers who control the person of the prisoner, 
as to where he shall be landed, you make the question of juris- 
diction dependent upon the purest accident in the navigation 
of the vessel. Thus, in this particular case, the Captain of the 
Minnesota tells us he had not coal enougli to come directly to 
New York, if he had designed to do so, and that he stopped at 



OF THE SCHOONER SAVANNAH. 181 

his blockading station and sent the prisoners on by another 
vessel, which the exij^encies of the service required to make 
the voyage. 

There is another proposition upon this question of jurisdic- 
tion which I deem it my duty to make to your honors, although 
I suppose the whole matter will be disposed of on considera- 
tions which have been presented on one side or the other, and, 
as I suppose, in favor of the jurisdiction. Yet I cannot but 
think that the rules of jurisprudence and the regular and 
effective administration of criminal justice will suffer if these 
questions are to be interposed and to be passed upon by the 
Court at the same time as the indictment itself. Where the 
question of the locality of the trial forms no part of the body 
of the crime, and has nothing to do with the place where the 
crime was committed, but is wholly a question of the local 
position of the prisoner, then the exception to the jurisdiction 
can only be taken as a preliminary plea, or in the shape of a 
plea in abatement. That was the construction in the Hicks 
case, and is the general rule in reference to jurisdiction in civil 
cases which are dependent upon the proper cognizance of the 
person of the defendant. I refer to the cases of Irvine vs. Lowry^ 
(14 Peters^ 293 ;) Sheppard vs. Graves^ (14 Howard, 505 ;) and 
D' Wolf vs. Eabaud, (1 F tiers, 476.) 

Mr. Larocque : I ask what particular point is decided by 
those cases? 

Mr. Evaris: Tliey are wholly on the point that where the 
jurisdiction of a Court of the United States depends, not on the 
suhject matter of the suit, but on the District where the 
defendant is found, or on the citizenship of the parties, an 
objection to the jurisdiction must be taken by a plea in 
abatement. 

Mr. Larocque: But suppose it depends upon the place 
where the crime was committed, whether in New York or 
Ohio, whether on land or at sea? 

Mr. Eoarts : It is not necessary to ask that question, for I 
have expressly excluded that consideration by the preliminary 
observation, that the locality of the trial forms no part of the 
body of tlie crime. In this case, the crime having been com- 
mitted outside of any locality, it is wholly a question of the 
regularity and legality of the means whereby the criminal lias 
been brought into the jurisdiction — nothing else. 

Mr. Larocque : Does the counsel cite these cases to show 
that want of j urisdiction must be pleaded in abatement ? 

Mr. Evarts: It is the rule in civil cases. Now, your 



182 TKIAL OF THE OFFICEKS AND CKEW 

honors will see that the question forms no part of the issue of 
guilty or not guilty. 

31r. Larocque : Will you look at the last averment in your 
indictment? 

Mr. Evarts : I repeat, that it forms no part of the body of 
the crime, and no part of the issue of guilty or not guilty, that 
is to be determined by the Jury. If the Jury, upon the issue 
of guilty or not guilty, should pass upon the question as to 
what District the defendant had been hrst brought into, or as 
to what District he was apprehended in, and should hnd that 
this Court had no jurisdiction, he would be entitled to an 
acquittal on that ground, and that acquittal would be plead- 
able in bar if he were put on trial in the proper District ; for, 
there is no mode, that I know of, of extricating this part of the 
issue from the issue on the merits of the case, when it is deci- 
ded by a verdict. There is no possibility of discriminating in 
the verdict. There is no special verdict and no question re- 
served. It is a verdict of not guilty. And, therefore, on the 
question of regularity of process, the crime itself is disposed 
of — the whole result of the judicial investigation being that 
the trial should have been in another District. 

But, where the locality of the crime forms a part of its body, 
of course, the Gove nment, undertaking to prove a crime to 
have been committed within a District, rightly fails if the 
crime is shown not to have been committed within that 
District. 

Mr. Larocque: And then can they not try it where it was 
committed ? 

Mr. Evarts : I should not like to be the District Attorney 
who would try it. 

Now, if the Court please, upon the matters connected with 
the merits of this trial, the first proposition to which I ask your 
honors' attention is — that the Act <i April 30th, 1790, in the 
sections relating to piracy, is constitutional, and that the evi- 
dence proves the crime as to all the prisoners under the eighth 
section, and as to the four citizens under the ninth section. The 
crime is also charged and proved against all the pri- oners 
under the third section of the Act of May loth, 1820. 

I do not know that your honors' attention has been drawn 
to the distinction between the eighth section of the Act of 
1790 and the third section of the Act of 1820. The counts 
in the indictment cover both statutes, and both statutes are in 
force. The words of the eighth section of the Act of 1790 
are these : 

"If any person or persons shall commit, upon the high seas," "murder or 



OF THE 8CH00NER SAVANNAH. 183 

robbery," " every such offender shall be deemed, taken and adjudged to be a 
pirate and felon, and, being thereof convicted, shall suffer death." 

The whole description of the crime is " murder or robbery" 
" upon the high seas." 

The third section of the Act of 1820 aids to that simple 
description of criminality certain words not at all tautological, 
but making other acts equivalent to the same crime. Ihe sec- 
tion provides that, " if any person shall, upon the high seas, or 
in any haven, &c., commit the crime of robbery iu or upon 
any ship or vessel, or upon any of the ship's company of any 
ship or vessel, or the lading thereof, such peison shall be ad- 
judged to be a pirate, and, being thereof convicted," "shall 
sutler death." Beyond the simple word, " robbery," is added, 
" in or upon any ship or vessel, or upon any of the ship's com- 
pany of any ship or vessel, or the lading thereof," 

Judge Nelson : The fifth section of the Act of March 3d, 
1819, provides for piracy on the high seas according to the law 
of nations. The previous Act of 1790, and the third section 
of the Act of IS'^O, prescribe the punishment of the crimes of 
murder and robbery on the high seas. 

The District Attorney: The Act of 1820 does not refer to 
murder, only to robbery on the high seas. 

Judge Nelson: It denominates as a pirate a person guilty 
of robbery on the high seas. 

Mr. Evarts: But the body of the crime is the robbery, an d 
njt the epithet. 

Mr. Brady : That is the question. 

Mr. Evarts : But, in the fifth section of the Act of 1819, the 
provision is, that "if any person shall, on the high seas, com- 
mit the crime of piracy as defined by the law of nations." 

Judge Nelson: That is a different offence. 

Mr. Evarts : Yes, and is open always to the inquiry, what 
the law of nations is. 

IN'ow^, that Act of 1790 is, we say, constitutional. And here 
I may as w^ell say what seems to be necessary in reference to 
the point made by Mr. Brady on behalf of the prisoners. He 
will contend, he says, that the ninth section of the Act of 1790 
is beyond the constitutional power of Congress — its cqnstitu- 
tional power in the premises being limited, as he supposes, to 
the right to define and punish the crime of piracy. 

Mr. Brady : " And oflfences against the law of nations." 

Mr. Evarts : To that explicit clause in the Constitution. 
^Now, your honors will notice what the crime iu the ninth 



184 TRIAL OF THE OFFICEKS AND CKEW 

section of the Act of 1790 is. It is not piracy so described, 
nor robbery so described merely, but it is a statutory defini- 
tion of the crime, which includes a particular description and 
predicament of the oifender (the eighth section having included 
all persons), and also defines the subject of the robbery, or the 
object of the piratical aggression. It is this: "If any citizen 
shall commit any piracy or robbery aforesaid, or any act of 
hostility against the United States, or any citizen thereof," &c. 
" Piracy or robbery aforesaid" would, vf course, include the 
definition of the crime as embraced in the eighth section. But, 
the ninth section proceeds to add a new and substantive com- 
pleteness of crime, not described either as piracy or robbery, 
to wit : " Or any act of hostility against the United States, or 
any citizen thereof, upon the high sens, under color of any com- 
mission from any foreign Prince or State, or on pretence of 
authority from any person, such oifender shall, notwithstand- 
ing the pretence of any such authority, be deemed, adjudged, 
and taken to be a pirate, felon, and robber, and, on being thereof 
convicted, si)all suifer death." 

Now, it is quite immaterial whether this statute is accm-ate 
in declaring the offender to be " a pirate, felon, and robber." 
It has made the offence a crime. Under what restrictions 
has it made it a crime? Has it undertaken to extend 
the jurisdiction of the Federal Government, as supported by 
the law of nations respecting piracy, which is a right on the 
part of every nation to legislate not only for its own citizens — 
not only in protection of its own property — but in punishment 
of all pirates, of whatever origin, and in protection of all prop- 
erty on sea, and wlierever owned? Now that, undoubtedly, is 
the jurisdiction under the law of nations, and neither by the 
Constitution has Congress received any greater power under 
the law of nations than that, nor, 1 respectfully submit, can it 
receive any greater power under the law of nations ; that is, 
Congress cannot receive any power greater than that which 
other nations, not bound by our municipal statutes, would be 
bound to respect, as sustained by the law of nations. Now I 
agree that "any act of hostility against the United States, or 
any citizen thereof," would not necessarily be up to tlie grade 
and of the quality of piracy under the law of nations; and 
that the Congress of the United States, in undertaking to 
make laws which would create an offence, and punisti it 
as piracy, which was not piracy by tlie law of nations, and 
in seeking to enforce its jurisdiction and inflict its sanctions 
on a people who owed it no municipal obedience, and in 
protection of property over which it had no municipal control, 
and no duty to perform, could not control foreign nations ; and 
that foreign nations would not be bound to resj^ect convictions 



OF THE SCHOONER SAVANNAH. 185 

obtained under such a municipal extension of our law over 
persons never sulvject to us, and in respect to property never 
under our dominion. 

And thus your honors see that, just in proportion as the 
ninth section has extended tlie crime, it has limited both the 
persons to whom the statute is applied, and the property in re- 
spect of which the crime is defined. It is wholly limited to 
our own citizens, subject to whatever laws we choose to make 
for our own government, and in respect of the marine proper- 
ty of the United States, and of its citizens when at sea, which, 
by every rule of the extension or limit of municipal authority, 
is always regarded, on general principles of public jurispru- 
dence, as a part of the property and of the territory of the na- 
tion to which the ship and cargo belong, wherever it may be 
on the high seas. 

Now, this ninth section, I suppose, if your honors please, — and 
such I understand to be the views of Judge Sprague, as ex- 
pressed by him to the Grand Jury, at Boston, — proceeds and is 
supported on the general control given by the Constitution to 
Congress over all external commerce, which, I need not say, 
must, to be effective, extend to the criminal jurisprudence 
which protects against wrong, and the criminal control which 
punishes crime perpetrated by our citizens on our own com- 
merce on the high seas. My learned friend would certainly 
not contend that the difl'erent States had this authority in ref- 
erence to crimes on the high seas. And, if they have not that 
authority, then, between these jurisdictions, we should have 
omitted one of the most necessary, one of the most ordinary, 
one of the wisest and plainest duties of Governments in regard 
to the protection of their commerce. For, it is idle to say that 
there are no crimes which may be committed at sea which are 
not piracy, and that there is no protection needed for our own 
commerce against our own citizens which does not fall within 
the international law of piracy. 

Mr. Brady : I ask Mr. Evarts' permission to make a sug- 
gestion upon this point, which it is due to him, and to myself, 
also, that I should present, that I may hear liis views in respect 
to it. I would ask the learned gentleman, and the Court, to 
suppose the case of an American citizen who, on the breaking 
out of a war between the United States and England, should 
be residing in England as a denizen, and who had resided there 
for many years, and who should take a commission for priva- 
teering from the British Government, regularly issued, having 
about it all the sanctions belonging to such an authority, and 
who, in the prosecution of a war, should take an American 
prize, — would he be liable to be convicted in the Courts of the 



186 TRIAL OF THE OFFICEKS AND CREW 

United States of piracy or robbery, under the act of 1T90? 
He clearly would, on its language. And then the question oc- 
curs — Had Congress any authority to pass such a law? 

Now, I will put a case which is stronger, and which comes 
equally within the plain terms, purview, and spirit of that Act, 
upon a literal construction. Suppose that two American ves- 
sels should come into collision on the Pacific Ocean, each 
manned and officered exclusively by American citizens, and, 
an angry feeling being engendered, the Captain of one ot them 
should direct a sailor to throw a belaying-jiin at the Captain 
of the other, and the sailor should do it. That would clearly 
be an act of hostility against one citizen of the United States 
perpetrated by another, and would be perpetrated under pre- 
tence of authority from a person, to wit, the Captain of the 
ship who gave the violent order. Would the sailor be liahle to 
a conviction for that offence, as a pirate or robber? and would 
Congress have the authority to pass such a law ? I doubt it 
very much. 

Mr. Evarts: I agree with my learned friend that tlie case 
which he first stated is not only within the words, but within 
the intent, of the ninth section. 

Mr. Brady : That an American citizen cannot take a com- 
mission from a foreign Government without being a pirate ? 

Mr. Evarts : To serve against the United States, he certain- 
ly could not ; and, if the law of nations and the rights of citi- 
zens require that a Government which demands allegiance and 
repays it by protection cannot make penal the taking of service 
from a foreign power against itself, I do not know what a Gov- 
ernment can do. So much for the general right or power of a 
Government. If the particular and clipped interpretation of 
our Constitution has shorn our Government of that first, clear- 
est, and most necessary power, why, very well. Such a result 
follows, not from that power or its exercise being at variance 
with the general principles or powers ot Government, but be- 
cause, as 1 have said, in the arrangement of the Government, 
there has fallen out of the general fund of sovereignty this plain, 
and clear, and necessary right. 

But, on the second instance which my learned friend has put, 
I am equally clear in saying, that the case he there suggests is 
not within the statute of 1790, simply because, although by a 
forced and literal c<mstruction, if you please, about which I 
will not here quarrel, my learned friend thinks he places it 
within the general terms of the ninth section, yet I imagine 
your honors will at once come to the conclusion, which seems 
to my poor judgment a sensible one, that the case he puts has 



OF THE SCHOONER SAVANNAH. 187 

nothing to do with the subject matter of the statute, within its 
intent or purpose — and that, simply, because the statute has 
not chosen to cover the case proposed, by applying to it so ex- 
travagant a penalty. It is not from any defect in the power 
of Congress. Congress does punish just such an offence as the 
one suggested, whenever the weapon and the assault make it 
of the gravity of offences to which Congress has chosen to ap- 
ply its penal legislation. The statute covering such an offence 
is enforced every day in this Court, And, certainly, I do not 
need to argue that, if Congress had the right to pass a statute 
prohibiting an assault with a belaying-pin, it had the right to 
call the offence piracy, if it pleased, and might punish it by 
hanging, if it saw fit ; and, for that, it is not amenable to the law 
of nations, nor is its power exercised with reference to piracy 
under the law of nations when it deals with that class of of- 
fences. 

I certainly do" not need to fortify my answer to the case first 
put by my learned friend, in regard to the right of a nation to 
punish its citizens for taking service against its own country 
and commerce, by the practice or the legislation of other na- 
tions. But your honors will find, in the statutes of Great Brit- 
ain — the statutes of 11 and 12 William III., and 2 George 11. — 
precisely the same exercise of power and authority, and to the 
same extent, as respects the gravity of ti)e crime and the pun- 
ishment prescribed for it. And it would seem to me to be one 
of the plainest rights and most necessary duties of the Govern- 
ment, if its attention is called to any proclivity of its citizens 
to take service against itself, to punish them not as prisoners 
of war, and not under the laws affecting privateers. 

Mr. Brady : I will only mention to you that, when I argue 
the question hereafter, and answer your suggestions, I will 
refer to the case of The United States v. Stniih, (5 Wheaton, 
153.) M'here Mr. Webster conceded, in the Federal Court, that 
this original Act defining piracy was, as respects the language 
I have referred to, not a constitutional exercise of the power 
conferred on Congress. Pie took the ground that the statute 
made a general reference to the law of nations as defining 
piracy, wiiereas, in his view. Congress should have proceeded 
to state what were the elements of the ofi'ence. I want to use 
that, in my argument, as an illustration of how strictly the 
Courts have held that it was never intended that even the 
case of taking a commission in a foreign service and making 
war against the United States, which might be treason, should 
be converted into piiacy by any necromancy or alchemy of 
the law, such as the gentleman seems to have in view. 

Mr. Evarts : Whenever a statute declares an offence to be 



188 TRIAL OF THE OFFICERS AND CREW 

a certain offence, that offence the Courts must hold it to be. 
The nomenclature of the Legislature is not to be quarreled 
with by the Courts which sit under its authority. They are 
to see that the crime is proved. What the crime is called is 
immaterial. 

Mr. Brady : Then the Legislature might say that speaking 
offensive words on the high seas by our citizens is piracy. 

Mr. Evarts : They can call it piracy, and punish it. 

Mr. Brady : Yes, by death ! 

Mr. Evarts : It does not come under the law of nations as 
piracy, but under the general control of Congress over our citi- 
zens at sea. In other words, no nation depends, in the least, on 
the law of nations and its principles for the extent of its control 
over its own citizens on the high seas, or for the extent of the 
penalties by which it protects its own commerce against the 
acts of its own citizens on the high seas. It takes cognizance 
of such offences l)y the same plenary power by which it takes 
cognizance of offences on land. The difference with us would 
be, that the State goveinment would have the control of these 
offences when committed on the land, as a general rule, and 
they would come within the Federal jurisprudence and the 
Federal legislation only by their being committed on the high 
seas. Now, what was said by Mr. Webster in the case of The 
United States v. Smith., a case arising under the Act of 1819 ? 
Mr. Webster argued that the special verdict did not contain 
sufficient facts to enable the Court to pronounce the prisoner 
guilty of the offence charged — that his guilt could not be ne- 
cessarily inferred from the facts foimd, but that they were, on 
the contrary, consistent with his innocence — but that, even 
supposing the offence to have been well found by the special 
verdict, it could not be punished under the Act of 1819, be- 
cause that Act was not a constitutional exercise of the power 
of Congress to define and punish piracy, — that Congress was 
bound to define it in terms, and was not at liberty to leave it 
to be settled by judicial interpretation. That was Mr. Webster's 
criticism upon the statute — that while the Constitution had 
said that the law must define what was piracy, Congress had 
left it to the Courts to define. Mr. Justice Story delivered the 
opinion of the Supreme Court in that case, to the effect, that 
the crime of piracy was constitutionally defined by the Act 
of Congress, and the point was so certified to the Circuit 
Court. 

The authority which this Court has for punishing the crime 
wbich has come under consideration in this case is the law of 
the United States, supported by the Constitution of the United 



OF THE SCHOONER SAVANNAH. 189 

States, in respect to botli branches of the statute under inquiry. 
As the indictment follows the law, and the law follows the Con- 
etitution, the subject for your cognizance is rightfully here, and 
the proofs and the evidence in the case show that the crime 
has been committed, and that the acts of the prisoners which 
resulted in the seizure of the Joseph on the high seas include 
all the ingredients that enter into the completeness of the crime 
of robbery on the hi>ih seas, as named in the eighth section of 
the Act of ITiiO, and in the third section of the Act of 1820. 
lam confining myself, in these observations, to the crime of the 
whole twelve, not affected by the question of citizenship, and 
not falling under the ninth section of the Act of 1790. 

It is certainly not necessary for me here to insist, with much 
of detail, on the question of the completeness or effect of the 
evidence as showing that the seizure of the Joseph was attended 
by all the circumstances of force, and was stimulated by all the 
purposes of robbery, which the law makes an ingredient of this 
offence. So far as the sufficiency of the evidence is to pass un- 
der the judgment of the Jury, it is entirely out of place for me 
to comment on it here. And, so far as any purpose of instruc- 
tion to the Jury by your honors requires any consideration 
now, it is sufficient for me to say, that there is no trait of vio- 
lence, and threat, and danger which, within the law of 
robbery, — and the law of piracy, it there be any difference, — 
makes up the necessary application of force, that is not pres- 
ent here. And I understand my learned friend, Mr. Lord, 
to concede, that there was force enough to make up the criuje, 
if the element of intent, the vicious purpose of robbery, was 
present, as part of the body of the crime. 

My learned friends have treated this latin phrase, animo 
furandi^ as if it meant animo fruendi — as if the point was, 
not the intent to despoil another, but the intent to enjoy the 
fruits of the crime themselves. Now, I need not say that a 
man who robs his neighbor to give the money to charity, 
despoils him, animo furandi^ just as much as if he did it with 
the intention of using the money for his own purposes of 
pleasure or profit. That is the point, and all the cases cited 
only touch the question of whether, in the violent taking, or 
the fraudulent taking, imputed as a crime, there could be sup- 
posed by the Jury to be, on any evidence introduced, any 
Iionest thought, even the baseless notion, on the part of the 
offender, that the property was not that of the man from whom 
he took it, but was his own. I have not seen anything in this 
evidence which should lead us to suppose that Mr. Baker and 
his crew thought that this vessel, the Joseph, belonged to them, 
and that they took her under a claim of right, as property of 
their own. The right under which they acted was a supposed 



190 TRIAL OF THE OFFICERS AND CREW 

right to make it their own, it then and there being tbe property 
of somebody else — to wit, of the United States of America, or 
of some of its citizens. So, your honors will find, that except 
so far as the considerations of the moral quality of this crime, 
in regard to its not being furtive and stealthy, are raised and 
supported by the general considerations which are to change 
this transaction from its private quality and description into a 
certain public dignity, as part of a wider contest, and which 
considerations are to be disposed of by the views which your 
honors may take of the afiiirmative proposition of the defence, 
which would make this privateering at least an act of hostility 
in flagrant war — except so far, 1 say, as these considerations are 
concerned, I need not say anytliing more as to the complete- 
ness of the ingredients, both of force, and of robbery or 
despoiling another, necessary to make np the crime. 

We come, now, if the Court please, to a variety of consider- 
ations, many of them, I think, not at all pertinent to a judicial 
inquiry, many of them ethical; many of them political ; many 
of them addressed to the consciences of men ; and many of 
them addressed to the policy of Governments — and which, in 
the forum where they are debatable, and which for the most 
part is a forum which can never make a decision, may be use- 
ful and interesting. Some of them do approach, doubtless, the 
substance and shape of legal propositions ; and I am sure I do 
no injustice either to the nature, or purpose, or character of 
these manifold views, when I say that they all centre on the 
proposition, that this transaction, which, in its own traits and 
features as a private act of these parties, is a crime of piracy, 
is transferred into the larger range of a conflict of force, au- 
thorized by the laws of war, and with no arbiter and no 
avenger, but in the conscience, and before the common Judge 
of all. Now, if the Court please, the legal notion to which 
we must bring this down, is this — that the acts here com- 
plained of are, within the law and jurisprudence which this 
Court administers, acts of privateering, not falling within the 
law of piracy. 

Now, what is privateering ? My learned friends have spoken 
of privateering as if it were one of the recognized, regular, suit- 
able public methods of carrying on hostilities between nations, 
and as if it fell within the general protection which makes 
combatants in the field, fighting as public enemies, and against 
public enemies, amenable only to the laws of war. And my 
learned friend, Mr. Lord, has read, with much satisfaction, the 
very pointed observations made by Mr. Marcy in his letter to 
the French Minister, which were very just and very appropri- 
ate as a home argument against France ; that is, the encomi- 
ums of certain French commanders on the dignity and nobility 



OF THE SCHOONER SAVANNAH. 191 

of the conduct of privateers who rushed to the aid of their 
country when at war. Now, my view, and I believe the view 
of the law books and of the publicists of the present day, is 
this — that privateering is the last relic of the early and bar- 
barous notions of war, that a trial of force between nations in- 
volved a rightful exercise of personal hostility by every indi- 
vidual of one nation against every individual of the other, and 
against every portion of the property of the other. That law 
of war which authorizes the attack on peaceful persons by 
armed bands on land, and the robbery, devastation, and de- 
struction of private property wherever it may be found, has 
been long since displaced by those piinciples of humanity, of 
necessity, and of common sense, which make war an appeal, 
when there is no other arbiter, to the strength of the parties, 
to be determined with as little injury to property and life as 
possible. Now, privateers have never been looked upon as 
being themselves entitled to the least comparison with the 
regularly enrolled military power, or with the regular naval 
service, in respect to their motives, or the general rules of their 
conduct, or the general eifect M'hich their depredations are 
expected to produce. And the tendency of all movements in 
the public laws of nations, as aifecting the maintenance of war, 
has been at least to discourage and to extirpate, if possible, this 
nrivate war on sea, in both of its forms — to wit, in the form of 
ublic armed vessels taking private and peaceable property on 
a, and in the still more aggravated form of private armed 
vessels, with crews collected tor the purposes of gain and plun- 
der, under the license which war may give. So far from this 
Government having, on the general principles, moral and social, 
which should govern such a discussion, desired to maintain or 
extend privateering, it was among the first and the earliest to 
concede in its treaties, and to gain from the other contracting 
parties the concession, that if war should arise between the 
parties to the treaty, privateers should not be commissioned or 
tolerated on either side. And, if this Government has failed to 
yield to the attempt made on the part of certain European 
powers to crush this single branch of private war on the ocean, 
to wit, war by private parties on the ocean, it has only been 
because it saw that that design, not including the destruction 
of that other branch of private war at sea — the war of public 
vessels against private property — was not a design clearly 
stimulated by the purposes and interests of humanity. While 
the European Governments chose to destroy that branch 
which was least important to them — the use of private armed 
vessels— they claimed to continue in full furce the right of pub- 
lic armed vessels to make aggressions on private property on 
every sea. The one point was quite as important to have ame- 



192 TRIAL OF THE OFFICEKS AND CREW 

liorated as the other, which permits us to reoriiit the small 
navv which our repuhlicun institutions justify us in maintain- 
ing, bv the vigor of our mercantile marine in the time of naval 
war. Therefore, there is nothing in the history of the country 
which can, in the least, support the idea that we look with 
favor on the notion of privateering. 

Some sensible observations upon the subject are to be found 
on marginal page 97, in the first volume of Kent's Commenta- 
ries, to which I ask your honors' attention : 

"Privateering, under all the restrictions which have been adopted, is very 
liable to abuse. The object is not fame or chivalric warfare, but plunder and 
profit. The discipline of the crews is not apt to be of the highest order, and 
privateers are often guilty of enormous excesses, and become the scourge of 
neutral commerce. They are sometimes manned and officered by foreigners, 
having no permanent connection with the country or interest in its cause." 

I agree that there is still left, under the license and protec- 
tion of the law of nations, the prosecution of hostilities on the 
high seas by privateers and private armed vessels. And I 
agree that, although the crime proved in this case does come 
within the descripiion and punishment of robbery and piracy, 
in its own actual traits and features, yet if it be shown that 
what is thus made piracy and robbery by the statute was actu- 
ally perpetrated by a privateer, under the protection of the law 
of nations, with a commission from a sovereign nation, within 
the scope of the authority of that commission, it is an answer 
to an indictment, the terms of which had been otherwise proved. 
And that is unduiibtedly what is claimed here. You have 
proved piracy and robbery under the eighth section, say these 
defendants, if we cannot impart to the circumstances and feat- 
ures of this crime some public quality and authority which 
saves the transaction from condenmation and punishment. 

Mr. Brady : "We say no such thing. We say tliat, if they 
acted in good faith, however mistaken, and thougli the commis- 
sion may be void, they have not committed any offence what- 
ever. 

Mr. Evarts : This is the extent of my concession, as matter 
of law, — that it is an answer to a charge of piracy which is oth- 
erwise complete, that the crime W'as committed under condi- 
tions which, by the law of nations, relieve it from punishment. 
Now, what are the conditions that the law of nations requires ? 

First, there must be a war. We do not allow private armed 
vessels to prosecute general marauding hostilities in support of 
the views of their Governments. We do not allow the interrup- 
tion of the freedom of the seas by such marauding vessels, ex- 
cept in cases of flagrant war, which neutral nations are com- 
pelled to recognize. 



OF THE SCHOOKER SAVANNAH. 193 

Secondly. The privateer must have received its commission 
from a public, national, sovereign power. You cannot make 
a privateer, and turn private acts that, by the law of nations 
and by municipal law, are piratical, into acts of war, which 
are of the same intrinsic quality and have the force of national 
acts, unless by this sine qua non of public authority and adop- 
tion. 

Now, if the Court please, when it comes up for judicial 
inquiry, whether a case of privateering, under the law of na- 
tions, is fairly made out, and w^here the case arises during 
flagrant war between two separate, independent, established 
nations, whose nationality is a part of the order of things in 
the world, the Court has only really to inquire, judicially, into 
two subjects — whether the vessel had a lawful privateer's com- 
mission from one of the contending parties — and whether the 
acts committed by her were within its scope, either actually 
or in the sense of a fair construction of the authority, and of 
good faith in the exercise of the power. But, even in these cases, 
where the only points are, whether there be war, and whether 
there be nationalities on each side which can convey this public 
authority, the Court is all the while governed by, dependent 
upon, and subordinate to, the views of the Government from 
which the Court derives its authority. No judicial tribunal 
has a right to recognize a nation, of its own motion. No ju- 
dicial tribunal has authority to recognize a Government which 
the Government from which it derives its authority does not 
recognize. I have never heard it proposed, as a view either 
of public or of domestic law, that wlien a Government has 
declined to recognize a nation, it was within the jurisdiction of 
a Court of that Government to determine differently, and 
reverse the decision of the political power. In the cases of 
France and England, which are recognized Governments that 
have placed themselves as firmly among the nations of the 
world as private individuals are planted in the rights of man, 
our Courts intermit this inquiry. A privateer of England 
which confines itself within the scope of its commission, can 
not be proceeded against as a pirate, although it commits acts 
which would of themselves be piracy. But, there do arise 
questions which come under the jurisdiction of the Courts, 
under circumstances of doubt and obscurity as to the course or 
view which our Government has taken in relation to the alleged 
nationalities of alleged belligerents ; and I need not say to 
your honors, that by an unbroken series of the decisions of the 
Supreme Court, as well as by the necessary subordination of 
the judicial authority to the political power of the Govern- 
ment, our Courts always take the view which their Government 
takes in respect to struggles and hostilities which arise between 
13 



194 TRIAL OF THE OFFICERS AND CREW 

uncertain, indefinite and unascertained powers. Thus, when- 
ever there occur, between Colonies and the parent Government, 
— between disaffected regions or populations and the sovereign 
to which they have been subject — dissensions which, arising 
from the region of discontent, sedition and turbulent disorder, 
reach the proportion of military conflict and appeal to arms, 
then, when acts in the nature of war are assumed to be per- 
formed, under circumstances that bring them within judicial 
cognizance in our Courts, and in the Courts of any other civil- 
ized nation, as to whether they still retain their quality and 
character of private acts, attended by the private responsibility 
of the criminals, or whether they are transferred to the wider 
theatre and looser responsibility of warlike engagement, our 
Courts, as do the Courts of other civilized nations, look to the 
Government to see what is its policy and its purpose. The 
instances in which these unhappy contests and these obscure 
questions have been presented before the Courts, have been 
almost entirely connected with the separation of the South 
American Colonies from the mother country of Spain. In all 
these cases, the new Governments of the revolted Colonies gave 
commissions to privateers, and undertook to put themselves 
before the nations of the world as belligerents, claiming from 
neutral nations, not a recognition of their independence, or of 
their completed nationality, but of their right to struggle, 
through the forms of force and war, to establish that nation- 
ality. They presented to the discretion and the policy of 
every other civilized Government precisely this question — Is 
there enough of substance, of good faith, of power, to justify 
us, as equal expounders and equal defenders and protectors of 
the laws of nations, although there be now no present national- 
ality that can support, under the rules of the law of nations, 
by mere right, the exercise of warlike powers — is there 
enough, in the transaction, to justify us in considering it to be 
so substantial and hona fide an effort for the assertion of inde- 
pendence and the creation of a new nation, that we shall give 
to it the oxDportunity, and turn what would be piracy and ma- 
rauding into an act of belligerents, so far as we neutrals are 
concerned ? 

When a nation is an independent nation, all other nations of 
the earth are, by public law, bound to recognize it, and bound 
to recognize its right to make war. The must powerlul nation 
in the world has no more right to make war than the smallest 
nation in the world ; and, each being judge of its own conduct, 
when a state of war exists, such war must, by the public law 
of the world, be recognized. But when new, unformed, in- 
choate, tentative consolidations or efforts of nationalities pre- 
sent themselves, every nation has, by the pubhc law, a right 



OF THE SCHOONER SAVANNAH. 195 

to exercise its own wisdom, its own policy and its own sense of 
justice, to determine whether or not it will recognize them; 
and, in every one of the cases I have referred to that came be- 
fore our Courts, arising for their consideration as between two 
parts of a foreign country, our Courts said — Onr Government 
has done so and so ; it has recognized them as belligerents, and 
we follow our Government. In other cases, as in that of the 
Commander Aury, the Court said — We do not understand that 
there is any such power known in the world ; our Government 
has never in any way recognized, not its independence, for 
that is not necessary, but its position as a war-making power, 
or as a struggling power, fighting for nationality, and we can- 
not recognize that condition of things. 

Now, unhappily, there arises a conflict in our own country, 
which presents the case of an armed military rebellion — a re- 
volt of certain portions of population, maintaining, if you 
please, to a certain extent, the mastery over a certain portion 
of our soil, using against us the actual means and processes of 
war, and compelling from our Government, in maintaining 
dominion against their aggressive assaults, the means of military 
power, naval and land Ibrces, and all the authority and vio- 
lence of war. Foreign nations have had, in regard to us and 
to this conflict, the same kind of questions presented that have 
been presented to us in the contests between the dismembered 
parts of other countries. And every nation was free to deter- 
mine, upon this exact question of the right of private war, as 
belonging to those rebellious portions of this country — to deter- 
mine whether it would tolerate privateering as a warlike pro- 
ceeding, or would regard privateers as maraudere or pirates 
without just right or cause, and without the pretence of sufli- 
cient force and dignity, in a movement to disturb the peace of 
the world. 

My learned friends have said, using the force of the argu- 
ment in aid of their cause, that France and England have 
recognized the insurgents as belligerents, and have precluded 
themselves from treating as pirates private armed vessels that 
shall derive authority from these rebellious powers. Well, by 
the same law of nations that gave to France and England this 
right thus to elect, they had the right to determine, and to 
announce by proclamation, that the peace of the world upon 
the ocean should not be disturbed, under pretence of war, 
by these insurgents, and that, if they should resort to private 
armed vessels to inflict aggressions and disturb the commerce 
of the world, they would be treated as pirates. And if, under 
the law of nations, the political authorities of France and 
England had thus announced their policy that these insurgents 
should be treated as pirates, I would like to know if advocates 



196 TRIAL OF THE OFFICERS AND CREW 

would be heard, in the Court of Queen's Bench or in the Courts 
of France, to urge that the Court, wiser than its Government, 
should, in the exercise of sovereign discretion under the law of 
nations, tolerate, as an act of war, wbat is piracy by municipal 
statute or the law of nations, unless accredited as part of a 
warlike movement. "Would those Courts permit the defence to 
be made, that what were declared to be acts of piracy were 
acts of war, — the Government having so elected and so an- 
nounced, that it would regard them as acts of piracy and not 
as acts of war ? 

Now, I am arguing this case altogether on this point, as if 
the Government from which this Court derives its authority — 
whose laws we are administering — whose authority is vested in 
your honors on this trial — stood as a stranger to and spectator 
of this contest, and it was really a controversy between parts of 
another nation. And all I have claimed is, that our Govern- 
ment, in common with the other nations of the world, has, by 
the law of nations, the right, in its discretion, to determine how 
this proceeding shall be treated, and what consequences shall 
follow from it. Now, I need not say that, treating our Govern- 
ment as if it stood ab extra, and as if, passing its judgment on 
wdiat was going on, it had determined that these privateers 
should be regarded as pirates, they should not be recognized as 
having the right of war, or the right, as an inchoate nationality, 
to perfect their independence. 

The Proclamation of the President of the United States, of the 
19th of April, 1861, is a complete and perfect denunciation of 
this threatened crime of piracy, the purpose to recur to which 
had been manifested by a public declaration of Jefferson Davis, 
which had invited, from all quarters of the globe, privateers to 
prey upon the commerce of the United States, 1 need not say 
to your honors that when our Government has pronounced this 
to be piracy, and to be not within the law of nations, under its 
discretion to determine whether it will recognize an inchoate 
nationality, this Court has not, any more than has a Court of En- 
gland or France, the power to say that what its Government 
does not choose to recognize, even in the quality of belligerents, 
it will recognize. What our Government has said shall remain 
in the quality of criminality, must so remain, notwithstanding 
this proclamation of Jefferson Davis, or any commission that 
may issue in pursuance of it. 

I apprehend that even if we were to bring ourselves into the 
paradoxical condition of passing judgment on this question as 
a disinterested, yet sovereign nation, your honors would find in 
the acts of the Government a complete denunciation against 
this proceeding as a crime of piracy, and a complete policy, 
which the Court must follow, leaving any diplomatic consider- 



OF THE SCHOONER SAVANNAH. 197 

ations of the results which may follow its mistaken, if you 
please, construction of its duty, to be disposed of by the au- 
thorities that are responsible for it. 

Mr. Brady : I believe there is no proof of any such action 
by the legislative branch of this Government. 

Mr. Evarts : I apprehend that the whole course of the legis- 
lation of this country shows that we do not recognize or tolerate 
tliis contest as a thing that is rightfully to go on. That is all 
that is necessary. 

I say, if the Court please, that the course of an external 
sovereignty, in these intestine quarrels, turns upon the point 
whether it will give its sanction to an intrusion upon the peace 
of the world by an inchoate nation, and I am trying to consid- 
er that question as if our Government had passed judgment 
upon it ah extra ; and I say that the action of our Government 
shows that we do not intend to recognize it as something that 
should be allowed to go on. These considerations, as to any 
recognition by this Court of rights derivable from quasi, pre- 
tended, nascent, public powers, would induce this Court to fol- 
low the decision of the Government, in case we were judging of 
the question as a controversy between parts of another nation. 

1 am now brought to the consideration of who are the par- 
ties to this controversy, and what are the relations of this Court 
and of the laws we are administering to the subject and the in- 
quiry. The Government of the United States still stands. The 
old Constitution, the whole system of its statutes, the wbole 
power of its army and of its navy, stand. It has its Courts of 
judicature; it has its commerce still on the seas; its laws are 
still operative, and still to be administered. And when this 
Court considers this case, it finds it brought before it as every 
other criminal case is, and limited to the considerations that 
belong to every criminal case. The Government of the United 
States, by the ordinary exercise of the process of judicature, — 
by seizure under public authority, — by arrest within this Dis- 
trict, through the criminal process of this Court, — by the indict- 
ment of a Grand Jury, — by the prosecution of the District At- 
torney, — has proposed to this Court the naked and narrow in- 
quiry of whether these men have committed a crime against 
the statutes of the United States. Now, 1 would like to know 
whether there is anything in these occurrences, that have se- 
cured, if you please, for the present, (and tlie future may be 
uncertain,) in large portions of our territory, a practical con- 
trol over great portions of our population, — I would like to 
know if there is anything in these transactions that has dis- 
placed the constitutional legislation of the United States of 
America over crimes on the high seas, and over its citizens 



198 TKIAL OF THE OFFICERS AND CREW 

committing crimes on the high seas, or over subjects or citi- 
zens, of whatever country, committing crimes on the high seas 
against our property ? I take it, not. Therefore, if your hon- 
ors please, whatever may be said, in one form or another, of 
the political right, as respects these States, either constitution- 
ally or by the right of force, to be independent, or to attempt 
to be independent of the United States, or to engage in this 
struggle for the settlement of some question of dispute under 
the Constitution, — whatever may be said of that, your honors 
cannot fail to discover that nothing which has occurred has de- 
stroyed the organism of our Government, or altered for a 
moment the judicial authority or the force and supremacy of 
the Constitution and the laws, within the territory where the 
Courts are open, over the subjects of our Government, and the 
subjects of whatever Government, in respect to whatever prop- 
erty, upon the high seas. 

I understand that my learned friend, Mr. Larocque, sup- 
poses that the ordinance of repeal of South Carolina, constitu- 
tionally or unconstitutionally supported by the strength to 
maintain its independence, has changed these four men who 
are indicted here and are proved to be citizens of the United 
States, from their condition of citizens of the United States ; 
and he holds, and asks as legal proposition from your honors, 
that, at the time of the commission of this crime, these men 
were not citizens of the United States, by reason of the con- 
stitutional right of South Carolina to carry itself out of the 
Union, by force of ordinances, or supported by military power 
that had maintained itself up to the first of June in the posses- 
sion of independent power. Your honors will charge, or 
refuse to charge, accordingly as you may find that the old 
Government has sovereignty and has attempted to exercise it, 
and that there has been no severance of our territory to the 
extent of a permanent division, — whether these men are citi- 
zens of the United States, or of a foreign country. If they are 
held to be citizens of a foreign country, to wit, of South Carolina, 
or of the Confederate States, then they fall back under the 
eighth section of the Act, as having committed piracy under 
that section. 

But, to come back to the attitudeof our Government, which 
this Court must follow, towards these rebels, — towards these 
malcontents, — towards these combinations, which are exercising 
the processes of war, undoubtedly, — what is the attitude of our 
Government ? Does it recognize their right — does it recognize 
their independence — does it recognize their authority, so that 
you find that our Government has adopted the policy of not 
punishing them under the laws of the United States ? 

And this brings me to the consideration of another general 



OF THE SCHOONER SAVANNAH. 199 

subject, which Mr. Lord adverted to, and upon which he cited 
the authority of Vattel — that it would be monstrous, and would 
expose this Government to the execration of the world, if the 
criminal laws against murder and robbery on land, and the 
civil laws against trespass, were to be executed to the letter, 
and to the full extent of the vengeance of the law against the 
multitudinous enemies that are arrayed against this Govern- 
ment. ISTow, I must decline to be led out of a Court of Justice, 
by this argument, to considerations that appeal to the wisdom, 
or humanity, or policy of the Government. I would like to 
know whether my learned friend would contend that, if a 
private soldier, found in arms, and part of a military force, 
against the Government of this country, is arrested by that 
Government, and is indicted, and put upon his trial for treason, 
which the Constitution of the United States limits to the overt 
act of levying war against the Government, and if, under the 
indictment, he pleads in bar that he was levying war against 
the United States of America, — that would reheve him? For 
that is the whole nature of the proposition put forward in a 
Court of Justice, — that, because there are armies, there is no 
treason ! Why, if your honors please, how absurd to present 
for the recognition of a Government, in its Courts of Judicature, 
the proposition that there is no treason, from the number of 
the confederates in the treachery ! Your honors see at once 
that, the idea of setting up such a defence, on a trial for treason, 
against a private soldier, found in arms against the Government, 
is absurd. And yet, your honors recognize what is laid down 
by the publicists, that when the dimensions of a rebellion have 
been aggravated into the proportions of flagrant war, for a 
Government to insist upon the decimation or extermination of 
the population by the gallows or the axe, would be inconsistent 
with those general principles of humanity and justice that 
actuate, by necessity, the aftairs of men. 

It is not necessary for me to discuss these questions. It 
belongs to the Government, after it has procured a conviction, 
either for piracy or for treason, to decide, in its own discretion, 
whether the penalty of the law shall be inflicted. Let us con- 
fine ourselves to our duties. Let us not be asked here, as a 
learned Bench, or as honest Jurymen, to recognize a Govern- 
ment or a state of belligerency that our nation does not recog- 
nize. And let us not be asked to repeal statutes of treason 
because the number of the traitors is so great that we cannot 
carry out the penalties of the law against the whole. I would 
like to know if in the face of any Court of Justice, — if in the 
face of the public opinion of the world, — if in the face of the 
principles of eternal j ustice, — it is to be set forward as a shield 
over the heads of the rebel leaders and traitors, that they have 



200 TEIAL OF THE OFFICERS AKD CREW 

inflamed and misled so large a body of the common people, 
that they, the leaders, cannot be punished. I wonld like to 
know if, when in advance, immediately npon the rebel proc- 
lamation inviting privateers, our Government, through every 
newspaper in the land, proclaimed that whoever should volun- 
tarily take up this form of piracy would be treated as a pirate, 
and you find the first privateer, with the first commission taken 
out under this proclamation of sovereignty, and the first band 
that volunteer — Mr. Baker and his crew, collected from all the 
quarters of the globe, — the first engaged in this new and flagrant 
form of outrage, against which they had been warned, — I would 
like to know if these bold outlaws, stretching forward a ready 
hand to grasp the license of war for plunder, the whole pro- 
ceeds of which are to fill their pockets, are to be presented 
in this Court as being special objects of protection, under the 
principles of humanity, and as being shielded against public 
nstice in enforcing the laws of piracy. 

Now, if your honors please, treating, as I do, this question 
as one to be passed upon, not with the coolness of a neutral 
power looking npon these contending parties as independent 
nations, but by this Court as the Government's own judicial 
organ for administering the public justice, I would iike to 
know what pretence there is that, under the laws of the 
United States, the crime of piracy having been proved, there 
is anything in this notion of a commission from a nationality 
recognized by our Government, or of a belligerent right 
recognized by our Government, that this Court can adopt as a 
merger of the private crime in tlie public conflict. AVe con- 
tend, therefore, that in the conflict now raging, the Constitu- 
tion and the laws of the United States make every person levy- 
ing war against the Government a rebel and traitor, and, if the 
war thus levied take the form of piratical aggression, a pirate, 
within the statute. 

Now, let me consider the ninth section of the statute. I 
will readily concede to my learned friends whatever advantage 
they can gain from the proposition that, when the ninth sec- 
tion was drawn, in the year 1790, one year after the adoption 
of the Constitution, it was never supposed that a pretended 
commission or authority to prey iq^on the commerce of the 
United States and violate its laws would come from any part 
of the people or of the territory of the United States. And I 
claim that there is nothing in this commission which, if there 
had been no statute recognizing a possible protection from a 
commission — there is nothing in this commission from a citizen 
of the United States, Jefferson Davis, to another citizen of the 
United States, Thomas Harrison Baker, to prey upon the com- 
merce of the United States, that can be regarded for a moment 



OF THE SCHOONER SAVANNAH. 201 

as a license wliich makes him a privateer, instead of a pirate. 
My learned friends have even sought to find occasion for a 
variance between the proof and the indictment because we 
have alleged, under the ninth section, that the pretended 
authority comes from " one Jefierson Davis," and have proved 
a commission which says, " I, Jefferson Davis, in the name of 
the Confederate States," have given such authority. Why, if 
your honors please, this indictment was drawn by an officer of 
the United States Government, to be tried in a Court of the 
United States ; and, having a fear of the law and a sense of his 
duty to his country, he describes things as they are. And I 
would like to have my learned friends point out to me any 
place, any office, any title, any description, any addition, any 
qualification, that, under the laws of the United States of 
America and its Constitution, describes Jefferson Davis, except 
" one Jefferson Davis." He has precisely that port and dignity 
before the law and the Constitution that every other individual 
in the United States has, not filling an office and post of 
authority under our Government and under our laws. He 
does fill the place of citizen of the United States, and no 
measures of separate State action, or of Confederate authority, 
have relieved him from that full and complete description of 
him, under the Constitution of the United States, as the meas- 
ure of his allegiance and of the penalties for its forfeiture. 
How could we have found a legal phrase or term, if we regard 
the Government of the United States and its Constitution, by 
which we could designate any such thing as " Confederate 
States," or a foreign state, within the accredited territory of 
the United States ? The terms and intent of this ninth section 
were framed so as to cover every imaginable authority, in the 
nature of a commission from a State, from a nation, from a 
power, or from any person, under the law of nations, for the 
conversion of private marauders into public enemies with the 
rights of war ; and, although it never entered into the imagina- 
tion of the framers of this statute that it would ever have to be 
applied to exclude protection under a commission from a citizen 
of the United States, its terms are absolutely fitting. I contend 
that the statute is complete, and that this commission is not a 
pretence of authority, even under the law of nations estab- 
lishing and recognizing privateers for struggling communities. 
It is nothing but an authority from one citizen of the United 
States to another citizen of the United States to prey upon the 
property of the United States. 

There are, if the Court please, some political considerations 
which were, it appears to me, more appropriately urged by 
my learned friend, Mr. Larocque, in his first address to the 
Jury, than in his argument to the Court. The point made by 



202 TKIAL OF THE OFFICERS AND CKEW 

him was this — that, under the Constitution of the United 
States, every citizen of every State held what was called the 
position of divided allegiance, having two sovereign masters 
over him; that they were equal and co-ordinate sovereigns; 
and that it was his duty to obey both of them. Now, with 
the necessary limitation that each one is sovereign over him 
in some respects, and has not the least power over him in 
others, and that the other is sovereign over him in other 
respects, and does not include the first topic or line of duty, 
there is a speculative support for this general notion. And, 
whenever it is not urged into any absurd consequences, it 
serves, in the language of the Courts and of public men, to 
describe the complex Government under which we live. But, 
if my learned friend means to assert that there are, under the 
Government of the United States, according to its form and 
method of organic operation, two equal sovereigns over every 
citizen on the same subjects, why then he has flown in the face 
of a fundamental proposition, coming from higher authority 
than the Convention of 1790 — that no man can serve two mas- 
ters. It is not in the nature of things that there can be two 
sovereigns having equal rights and authority over one subject ; 
and my learned Iriend illustrates the absurdity of the proposi- 
tion when he comes to consider what would be the result if the 
two sovereigns should disagree. He says it is the duty of the 
subject to adhere to one side or the other; that, it being his 
complete duty to adhere to one side, the other side cannot 
complain of it as a breach of duty that he does not adhere to 
him, but to the other ; and that, therefore, the general rule, that 
when you have a sovereign and are unfaithful to him you may 
be hanged, cannot apply to the case, because you would, in 
either case, be hanged. And his wise, and suitable, and cer- 
tainly humane solution of this difficulty is, that when one of 
the sovereigns indicts you for treason, it is a good bar to say 
you elected in good faith to serve the other sovereign. Thus, 
so far from there being two sovereigns, the nature of the term 
sovereign including the right to hang you for imfaithfulness, 
there is not one that has the right to hang you, and you are 
master of both ; for, whatever you do in good faith is a supreme 
answer to both. 

Now, if the Court please, this is the point of the whole 
thing — that, under this peculiar Constitution of ours, and under 
this division of the subjects of Government, each sovereign is 
judge of when the other has passed the limits of his authority, 
and that the States possess the right to compel the obedience 
of their citizens, and the United States possess the right to 
compel the obedience of their citizens, it is sufficient for us 
to say that we represent, as Federal citizens, the Government 



OF THE SCHOONEK SAVANNAH. 203 

of the United States in its interpretation of its own position 
towards those its citizens, or those persons not its citizens, 
who are alleged to have perpetrated crimes against its com- 
merce ; and, whether there be, or not, speculations of political 
and theoretical and ethical and conscientious right, in good 
faith, to put yourself at variance with the Government of the 
United States because other people do so, or because the State 
authority does so, it follows that the United States, its authori- 
ties, its Courts, and its population, have the right to think, and 
feel, and act, as if its Government were in the right and you were 
in the wrong ; and you, being brought within the criminal justice 
of their law, can find no support and no protection upon the good 
faith or upon the speculative political theories upon which you 
have rested for your protection and for your authority. 

It is said, that outside of this question of the political and 
legal qualifications of this act which we say is criminal, the 
circumstances, actual and moral, which surround these actors, 
and are shown by their actions, have deprived their acts of the 
criminal quality which the statute affixes to them ; and that if, 
in good faith, they thought there was a commission, and in 
good faith thought there was a rightful Government, that good 
faith, which has despoiled the American merchant of his prop- 
erty, is a plea in bar to the criminal jurisdiction of the United 
States of America, whose laws they have violated, although all 
this pretence, all this show, all this form of political and legal 
support qualifying their acts, comes from men whom the Con- 
stitution pronounces to be in the category of rebels and traitors, 
every one of them amenable to the final jurisdiction of our 
laws. This is but another form of saying that criminals join- 
ing hand in hand shall go unpunished. Make the number of 
them what you will, if in the eye of the law they assume au- 
thority which is on its face criminal and illegal, and even 
though it is a part of a general scheme and organization for 
violent military resistance to the authority of the country, no 
Court can dispense from the punishment, but must inflict it 
through the general and ordinary criminal authority in respect 
to the crime in question, leaving the question of dispensation 
to the clemency, the humanity, and the policy of the Govern- 
ment. 

I believe that all the cases have been cited, either on the 
one side or the other, from the Reports of the Supreme Court of 
the United States, that have had to do with the question as to 
the political character of the revolted South American States. 
Those which were cited by my learned friend, Mr. Larocque, 
The Josef a Segunda (5 Wheaton, 338), The Bello Corunnes (6 
Wheaton, 152), and The Santissima Trinidad (7 Wheaton^ 
283), are all authorities, as we suppose, for the view which the 



204 TEIAL OF THE OFFICERS AND CREW 

Courts adopt, even when tliej are Courts of a neutral nation — 
that they follow the decisions of their Government as to the 
public quality and character of belligerents. 

Adjourned to Monday, 28 Oct., at 11 o'clock, A. M. 



FIFTH DAY. 

October 28, 1861. 
AEGUMENT OF MR. DUKES FOR THE DEFENCE. 

Mr. Evarts said : Perhaps it is unnecessary that I should 
say to the Court and learned counsel, that I shall refer to the 
Statute of treason, as well as to the Constitutional provision as 
to treason. The Statute of treason is found in tlie first section 
of the Crimes Act of 1Y90. 

Mr. Dukes said : 

May it please your honors and gentlemen of the Jury. 

It has been said by one of the most eminent statesmen that 
ever lived, that " civil wars strike deepest into the manners of 
the people, — they vitiate their politics ; they corrupt their mor- 
als ; they pervert the natural taste and relish of equity and jus- 
tice." 

If this be so, one would think that this was a singularly un- 
fortunate time for the Government to bring on the trial of these 
prisoners at your bar, who are entitled to that right which the 
Constitution offers to the meanest citizen — that of a fair and 
impartial trial. 

Is it to obtain that fair and impartial trial that the case is 
brought on now, when the flame of civil war lights the land, 
and when, in every stage and condition of society, the bitterest 
sentiments of hostility prevail ? 

Is it in order to afford the prisoners a fair and impartial trial 
that the case is brought on now, when tender infancy and gen- 
tle woman unite with stern and selfish man in uttering the 
deepest imprecations on their enemies? 

Is it in order to obtain a fair and impartial trial that the 
case is brought on now, when, on God's holy day, in his holy 
temple, his chosen ministers officiating at his holy altar, utter- 
ly unmindful of the injunction of their meek and lowly Master, 
"to forgive their enemies, and to pray for those who despite- 
fully use them" — offer up to Heaven prayers for its severest 
vengeance upon the heads of their enemies? 



OF THE SCHOONER 8AVA1TNAH. 205 

If SO, gentlemen, I beg at least, (as one of the counsel,) to 
offer my dissent. 

It does, indeed, seem to me that this is a singularly unfortu- 
nate time to bring on this trial. But yet, gentlemen, I feel 
buoyed up with hope, because I know the unbending integrity 
of the Judges that officiate, and I know that the Jury, which sits 
in judgment over the lives of these men, is chosen from the cit- 
izens of New York — a city in which, if any city in the world 
possesses large, liberal, and enlightened views, we may hope to 
lind them. But, still, the officers of the Government must ex- 
cuse me for saying that I think it unfortunate, and somewhat 
illiberal in them, considering the character of the charge made 
against these men, to try them now. It does seem to me that it 
is, at best, but trying treason with an odious name. 

Gentlemen, this is no new thing. Years ago this very ques- 
tion, as to the propriety of trying men situated as these men 
are, was brought before the mind of that liberal and enlight- 
ened statesman, Edmund Burke — the long-tried and faithful 
friend of America ; and I trust that I may be pardoned for re- 
ferring to his words on this occasion, and for reading to you a 
passage from his celebrated letter to the Sheriffs of Bristol, in 
1777, which, perhaps, will more fully illustrate my views than 
anything I can say. Speaking about American privateersmen, 
then in the same position as these men now are, he says : 

" The persons who make a naval warfare upon us, in consequence of the 
present troubles, may be rebels; but to treat and call them pirates is con- 
founding, not only the natural distinction of things, but the order of crimes; 
which, whether by putting them from a higher part of the scale to the lower, 
or from the lower to the higher, is never done without dangerously disorder- 
ing the whole frame of jurisprudence. 

" Though piracy may be, in the eye of the law, a less offence than treason, 
yet, as both are, in effect, punished with the same death, the same forfeiture, 
and the same corruption of the blood, I never would take from any fellow- 
creature whatever any sort of advantage which he may derive to his safety 
from the pity of mankind, or to his reputation from their general feelings by 
degrading his offence, when I cannot soften his punishment. 

" The general sense of mankind tells me, that those offences which may 
possibly arise from mistaken virtue are not in the class of infamous actions. 

" Lord Coke, the oracle of the English law, conforms to that general sense, 
where he says, ' That those things which are of the highest criminality may 
be of the least disgrace.' ******* 

" If Lord Balmerine, in the last rebellion, had driven off the cattle of twen- 
ty clans, I should have thought it would have been a scandalous and low jug- 
gle, utterly unworthy of the manliness of an English judicature, to have tried 
him for felony as a stealer of cows. 

" Besides, I must honestly tell you that I could not vote, or countenance 
in any way, a statute which stigmatizes with the crime of piracy these men, 
whom an Act of Parliament had previously put out of the protection of the 
law. 

" When the legislature of this Kingdom had ordered all their ships and 
goods, for the mere new-created offence of exercising trade, to be divided as 



206 TRIAL OF THE OFFICERS AND CREW 

a spoil among the seamen of the navy — to consider the necessary reprisal of 
an unhappy, proscribed, interdicted people as the crime of piracy, would have 
appeared, in any other legislature than ours, a strain of the most insulting and 
unnatural cruelty and injustice. I assure you, I never remember to have 
heard any thing hke it, in any time or country," 

Gentlemen, I read this extract because it is the testimony 
of an eminently wise man, and an eminently just one. Such 
were his views at that day, and I am inclined to believe that 
those words spoken by him then have a better application to 
the state of things at present than any remarks I can make, or 
that can be made by any one of us who are in the midst of 
this whirl of excitement. 

But, gentlemen, the Government has chosen to make the 
issue. It was at liberty to do so ; and that issue is piracy. 

Piracy, gentlemen of the Jury, you have heard defined by 
the eminent counsel who preceded me. The parties here occu- 
py, as it were, a two-fold capacity. The eighth section of the 
Act of 1790 applies to piracy under the common law ; the ninth 
section of that Act creates what we have called statutory piracy. 
The eighth section of the Act only alludes to piracy as it is 
acknowledged under the law of nations, and as known to the 
common law. The ninth section, however, differs from the 
eighth, because it applies peculiarly to citizens of the United 
States, and is supposed to be more enlarged in its character 
than the eighth section. Now, with reference to a portion of 
the prisoners here, — to those who are not citizens, — eight of 
them come entirely under the eighth section ; and we shall 
contend that, under that section, they cannot be convicted. As 
regards the other four, it will be contended, that not only are 
they embraced by the first, but likewise by the second of these 
sections — that of statutory piracy, which applies peculiarly to 
them. 

Well now, gentlemen, in regard to the eighth section, the 
learned counsel who very ably addressed the (]ourt on last 
Saturday, stated that intent had little or nothing to do with 
the offence ; that he did not choose to be held to the animus 
fruendi^ but that the charge was the animus furandi, and that 
when a person committed robbery it was but of very little 
consequence to what purpose he applied the proceeds of the 
robbery, or for whom he committed it. Now, with all due 
deference to the learned counsel, I think this is putting the case 
rather unfairly, because he is quietly assuming the very point 
we are discussing ; for it is the fact of the aniTnus furandi — 
the fact whether or not this is robbery — that we are discus- 
sing. 

We have distinctly said, and shown by the books, that that 
which he says is not the characteristic of the crime, is really 



OF THE SCHOONER SAVANNAH. 207 

its characteristic, and that intent in this, as in every other 
offence, peculiarly constitutes the crime. 

It is just because the taking is not for the party himself — 
is not an appropriation for his own purpose, and for his own 
ends, and for his own object, that there is a difference between 
piracy and privateering. And why is this so ? Because the 
party who goes forth on a privateering expedition, goes forth 
under the sanction of a nation. It may be a nation only de 
facto, but still it is a nation. He goes by the authority of that 
nation, armed with a commission under its sanction, after 
having given the most ample security to be responsible to the 
nation itself for any act of misconduct on his part ; that nation 
holding itself out to the civilized world as responsible for every 
excess on the part of the citizen to whom it grants letters of 
marque. Well, gentlemen, the taking of property on the part 
of the privateer is not for himself. The taking is in the 
name of the State. The title which the privateer has in the 
captured property is no title at all, nor does he pretend to 
claim it. The title is in the State, and up to the very moment 
of condemnation, although the property may have been ac- 
quired by his blood, and by his treasure, the State has the right 
to release it. So important is this fact of intention, as entering 
into the transaction, that it has been held that no excess on the 
part of a person carrying letters of marque from a regular 
Government could be punished as piracy — the Government 
being liable, and he himself being referred to his own Govern- 
ment for punishment. 

It has been even held in England, that where the act of 
taking a commission from a foreign prince was so unlawful in 
its character as to amount under the law to a felony, yet still 
the party having letters of marque, should not be charged 
with piracy. 

!Now, gentlemen, there was an attempt made by the learned 
counsel to cast odium upon privateering and upon this transac- 
tion, by speaking of these men as going out for their own plun- 
der. Well, I have nothing to say about that ; but there is 
one thing to be remarked : that in times of hostility the plun- 
der does not belong to one side, nor does it belong to the pri- 
vateersman alone, but the regularly armed vessels of every 
nation in the world, as well as privateersmen, are enriched by 
the cajjture of prizes at sea ; and I suspect that the members 
of the bar now present can tell you how extensively our own 
navy has been enriched within the last few weeks by the con- 
demnation of prizes. If the spoils derived from enemies' prop- 
erty be plunder, and if it be disgraceful to take it, then the 
highest names in England have been associated with such 
plunder, for you have but to look into the English books to find 



208 TRIAL OF THE OFFICERS AND CREW 

the name of the great and distinguished Arthur, Duke of Wel- 
lington, as connected with such cases. 

But, gentlemen, there is another thing which would prevent 
the parties from being convicted of piracy, that is, the state of 
enmity existing between the two nations. It is a general rule 
that enemies can never commit piracy against each other, their 
depredations being deemed mere acts of hostility. This is as 
far back as the days of Lord Coke ; and the rule has been 
carried so far as to protect the citizen of one of the belligerents, 
who, without any letter of marque at all, goes on the ocean and 
seizes the property of the enemy. It is true, it has been said 
that in such cases citizens act at their peril, and are liable to 
be punished by their own sovereign ; but the enemy is not 
warranted in considering them as criminals. 

That the people of the Confederate States, under whose 
commission these men have acted, stand in the light of ene- 
mies, the learned decisions of Judges Cadwalader and Betts; 
the blockade of the Southern ports, which is a hostile measure ; 
the confiscation of the property of their citizens — not only of 
the property of the men who have arms in their hands, but of 
the cit zens at large ; the captures at sea ; the vessels condemned 
here ; the virtual dissolution of partnerships ; the admission of 
the plea of alien enemy ; the President's proclamation of 
non-intercourse ; the arrest of citizens of those States returning 
from Europe ; and the opinion of my learned friend, the Dis- 
trict Attorney himself, showing that it is treason for the banks 
here to pay over the bank balances to Southern customers, — all 
these things go to establish, thoroughly and sufficiently, the 
condition of enmity or hostility, which forms a protection to 
these parties. They fix the status of war ; they decide that the 
two powers are enemies, and that, too, without any declaration 
of war, for no declaration of war is needed. It seems to me that 
it is all useless to attempt to evade the admission that there is 
war. We cannot by legal enactments — we cannot by judicial 
decisions — we cannot by Presidential Proclamations — establish 
the condition of war and all the consequences of war, and yet 
shrink from its open avowal. And yet that is precisely what 
is attempted here. It may do with those that are strong to 
oppress their own subjects, but it will not do when you come 
to deal with foreign nations. When you come to deal with 
these eight men who are here, the subjects of foreign powers, 
those powers have a right to put in a word. Gentlemen, it is 
impossible for this Government to do less than acknowledge 
that, in fact, there is a state of hostility ; and you may as well 
call it by its proper name — we are in the midst of war. 

It will not do for the Government, like the ostrich, to put 
its head under its wing, and fancy that because it sees nobody, 



OF THE SCHOONER SAVANNAH, 209 

nobody sees it. The Government has enacted all the conse- 
qnences of war without making an open or decided declaration 
of it. Under snch circumstances, however, the status'^of en- 
mity is sufficiently fixed to protect the prisoners. --*^'^ 

But there is another test of piracy, gentlemen, and it^is 
this — Is the privateer a universal enemy ? Is he a universal 
plunderer? Is his hand against every man ? Has he not a 
nation ? 

Now a pirate has no nation. He is an outlaw, and is jus- 
ticiable everywhere. His is the law of might — 

'.' For why ? Because the good old rule 
SufiBceth him : the simple plan 
That they should take who have the power, 
And they should keep who can." 

But it is not necessary that the nation under whose com- 
mission he acts, shall be one which is already established and 
acknowledged among the family of nations. It may be a 
colony struggling for independence, and not yet recognized by 
the nations of the earth. Our own Courts years ago decided 
this case with a liberality which has eminently distinguished 
them, and established the principle in respect to the South 
American colonies — colonies at that time not acknowledged 
by our Government as independent nations. 

So, gentlemen, it was with regard to the powers of Europe 
during the days of the American Revolution. Every power 
in the world respected the letters of marque issued by Con- 
gress; and if there is an instance of a single casein which, 
in any land in the civilized world, there was a criminal trial of 
an American privateersman, I have not been able to find it. 
Their letters of marque were recognized because they were 
the letters of a de facto Government. 

Now, gentlemen, what are the tests sufficient to form such 
a nationality as will cover these commissions ? Are the Con- 
federate States, in this instance, competent to maintain the 
relations of war and of peace ? Gentlemen, if the South Amer- 
ican provinces were, I think it can hardly be disputed that the 
people of ten great States like these certainly are. They are 
very far beyond them in civilization, in information, in wealth, 
and in all the means by which nations sustain their independ- 
ence. 

So important, however, is the fact of a commission, that 
even a commission from the Barbary powers — states which 
subsisted entirely, I may say, by plunder and piracy — was re- 
garded as sufficient, in the Courts of England, to protect an 
Algerine who was taken with letters of marque. And that 

1 " 



210 TRIAL OF THE OFFICERS AND CREW 

opinion comes with the authority of one of the greatest mas- 
ters of the science of jurisprudence — Sir William Scott — a 
name that can never be mentioned without feelings of rever- 
ence by any man who respects the sentiments of justice and 
their application to the principles of international law. In the 
case I allude to, the Barbary subject was taken in an attempt 
to seize an English vessel. The crew was composed of foreign- 
ers, men of different nations, most of them belonging to Spain 
and France. It was held that as to all the rest of the parties 
they should be treated as outlaws, but the Algerine was allowed 
the plea of resjpondeat sujperior. In other words, he had but 
to point to his country, and say she was responsible ; that she 
gave hitn authority, and assumed the responsibility ; and upon 
that plea he was allowed to go. I mention this to show how 
far the doctrine has been carried. 

But, gentlemen, if the commission from a Government de 
facto generally is a plea in bar (and that it is, I have no doubt 
the Court will charge you), it certainly holds good in a case of 
this kind, where tlie authority is much less questionable. 
Now, are the United States bound to recognize the Confederate 
States as belligerents ? Not as an independent nation, — that 
is an entirely ditferent question. We say, gentlemen, not only 
that the United States are bound to recognize the Confederate 
States as belligerents, but we think we have shown that they 
have done so. The capitulation between Commodore String- 
ham, General Butler, and Commodore Barron, recognized the 
existence of a state of war, and recognized the prisoners as 
prisoners of war ; and not one word has been said, and not one 
act done, by the Government, to disavow their authority in so 
doing. It is the principle of civilized nations — and we belong 
to the family of civilized nations — to recognize parties, even in 
the midst of civil war, as belligerents ; and this country is too 
just, too powerful, and too elevated in sentiment, to shrink from 
that which civilization, decency and honor compel her to stand 
to. She must recognize even those who are her children — 
struggling against her authority though they be — as fair and 
honest antagonists. From the time of our own struggle, in the 
days of the Revolution, we professed the principles of interna- 
tional law. They are now a part of the law of the land. There 
is a moral obligation upon us to occupy our position in the great 
family of nations; to hold it, as we have always done, with honor 
and with distinguished consideration. Sorry, indeed, would I 
be to think that there should be, on this occasion, any eminent 
departure from it, as there certainly would be if these men 
were held in any other light than as mere privateersmen, and 
not pirates. 

But if these principles are true, as applying between the 



OF THE SCHOONER SAVANNAH. 211 

people of this country and the people of England during the 
days of the Revohition, — if the mother country then considered 
us as belligerents where there could be no subtle political ques- 
tion such as may be raised here, and has already been raised 
— the doctrine of the two sovereignties, — there is then, at least, 
a reason wiiich applies in this case, and never could have ap- 
plied in that case ; for the allegiance of the colonies to the 
mother country was firm, fixed, and undivided : it never was, 
and never could be, questioned. 

I say, then, that these parties are not pirates ; and 1 farther 
say that the municipal laws of a State, or of a number of States, 
cannot ' constitute that ofience to be piracy which is not so 
characterized by international law; and for this principle I re- 
fer to 1st Phillimore, 381 (International Law). 

I come now to the 9th section, and I will read that sec- 
tion: 

" And be it further enacted, that if any citizen should commit any piracy 
or robbery aforesaid, or any act of hostiHty against the United States or any 
citizen thereof, on the high seas, under color of any commission of any for- 
eign Prince or State, or on pretence of authority from any person, such offender 
shall, notwithstanding the pretence of any such authority, be deemed, ad- 
judged, and taken to be a pirate, felon, and robber, and on being convicted 
thereof shall suffer death." 

This section applies particularly to the citizens of the 
United States. Now, I contend that this section does not 
change the character of the offence. It difiers only by stating 
that the commission shall not form a pretext. The words " pi- 
racy and robbery" explain the words " acts of hostility," which 
follow immediately afterwards. Where particular words are 
followed by general words, the latter are held as applying to 
persons and things of the same kind as those which precede. 
The coupling of words together shows that they are to be un- 
derstood in the same sense. Take these two principles with 
the other principle, that penal statutes are to receive a strict 
interpretation. The general words of a penal statute must be 
restrained for the benefit of him against whom the penalty is 
inflicted. 

To the same efi'ect is the case of The United States vs. 
Bevins (5 Wheaton) : 

" Penal statutes, however, are taken strictly and literally only in point of 
defining and setting down the crime and the punishment ; and not literally in 
words that are but circumstances and conveyance in the putting of the case. 

" Thus, though by the statute 1 Ed. 6, 0. 12, it was enacted that those 
who were convicted of steaHng horses should not have the benefit of clergy, 
the Judges conceived that this did not extend to him that should steal but 
one horse, and therefore procured a new Act for that purpose in the follow- 
ing year. 
" But upon the Statute of Gloucester, that gives the action of waste against 



212 TRIAL OF THE OFFICERS AND CREW 

him that holds pro termino vitce vel annorum, if a man holds but for a year 
he is within the statute ; while, if the law be that for a certain offence a man 
shall lose his right hand, and the oflfender hath had his right hand before cut 
off in the wars, he shall not lose his left hand, but the crime shall rather pass 
without the punishment which the law assigned than the letter of the law 
shall be extended. ^''i^M 

" A penal law, then, shall not be extended by equity ; that is, things 
which do not come within the words shall not be brought within it by con- 
struction. f^;:si^ 

" The law of England does not allow of constructive offences, or of arbi- 
trary punishments. No man incurs a penalty unless the act which subjects 
him to it is clearly both within the spirit and the letter of the statute im- 
posing such penalty. 

" ' If these rules are violated,' said Best, C. J., in the case of Fletcher vs. 
Lord Sondes, 3 Bing., 580, ' the fate of accused persons is decided by the ar- 
bitrary discretion of Judges, and not by the express authority of the laws. 
2d Dioarris Stat., 634.' 

" By another restrictive rule of construing penal statutes, if general words 
follow an enumeration of particular cases, such general words are held to 
apply only to cases of the same kind as those which are expressly mentioned. 
By the 14 Geo. 2, C. 1, persons who should steal sheep or any other cattle 
were deprived of the benefit of clergy. The stealing of any cattle, whether 
commonable or not commonable, seems to be embraced by these general 
words, " any other cattle,'''' yet they were looked upon as too loose to create a 
capital offence. By the 15 George 2, C. 34, the Legislature declared that 
it was doubtful to what sorts of cattle the former Act extended besides sheep, 
and enacted and declared that the Act was made to extend to any bull, cow, 
ox, steer, bullock, heifer, calf, and lamb, as well as sheep, and to no other 
cattle whatsoever. 

" Until the Legislature distinctly specified what cattle were meant to be 
included, the Judges felt that they could not apply the statute to any other 
cattle but sheep. 

"The Legislature, by the last Act, says that it was not to be extended to 
horses, pigs, or goats, although all these are cattle. 
"3Bingh., 581. 
" 2 Dwarris, Statutes, 635." 

By the English law, and by the principles of general law, 
may it please the Court, the offence must be clearly defined — 
it must be limited, ascertained, fixed. It must be clear to the 
accuser. It must be clear to the accused. It must be equally 
clear to the Judge. It must leave him no discretion whereby 
he can enlarge or alter it. And, may it please the Court, this is 
the safe and true principle of construction — to give as little as 
possible to the discretion of the Courts ; for it has been well 
said, that the arbitrary discretion of any man is the law of 
tyrants. It is always unknown ; it is different in different men ; 
it is casual, and depends on constitution, temper, and passion. 
In the best of us it is oftentimes caprice ; in the worst of us it 
is every vice, folly and passion to which human nature is lia- 
ble. It is by defining crime clearly that the citizen has his 
strongest guarantee for his personal safety. Let us see the 
opinion of perhaps the greatest master that ever touched the 
subject of jurisprudence — 1 mean Montesquieu. 



OF THE SCHOONER SAVANNAH. 213 

" It is determined," he says, " by the laws of China.that whoever shows 
any disrespect to the Emperor is to be punished with death. As they do not 
mention in what this disrespect consists, every thing may furnish a pretext 
to take away a man's life, and to exterminate any family whatsoever. 

•' If the crime of high treason be indeterminate, this alone is suflBcient to 
make the Government degenerate into arbitrary power." — Montesquieu, Spirity 
Book 12, c. 7. 

Now, may it please the Court, it is through statutes in 
which crimes are ill-defined — are not clearly and distinctly de- 
signated — that tyrants in every age have been able to crush 
their victims. Hence, in the noble system of laws that it is 
your honors' privilege to dispense, safeguards have been put in 
the strongest degree, and bulwarks have been erected around 
the life, the liberties, and the rights of the citizen. 

Now, what is an " act of hostility " ? Suppose these men 
had gone out with a commission instructing them to go on the 
seas, to board vessels, and to beat the captains of vessels, and 
to do no more — to abandon them then, and take to their own 
ships — would that be an act of piracy ? Is it not plain that 
the law meant piracy or robbery, or any " act of hostility " 
ejusdem generis^ that is, animo furandi ? To show that this 
construction is not forced, your honors will find in the Act of 
March 3d, 1825 (Dunlop's Laws, p. 723, sect. 6), that a special 
law was passed for the very purpose of punishing acts of hos- 
tility against the United States and its citizens hy forcibly 
attacking and setting upon vessels owned in part or wholly by 
either of them, with i?itent to plunder and despoil the owners of 
moneys^ goods^ &c., &c. If, therefore, this construction of 
these words, which I respectfully submit to the Court, has any 
■weight in it, they amount to no more than what has been 
already decided in Clintock's case — the clear and well-settled 
principle of law that the commission shall not form a pretext 
for robbery. 

But, may it please the Court, as to the ninth section of the 
Act, it never was contemplated as applying to organized States. 
It was an Act which was intended to apply to individuals 
alone. States are not the subjects of criminal law, nor can 
you legislate against them ; and this has been distinctly de- 
cided. If the Confederate States have been guilty of a gross 
breach of faith in the attempt to withdraw from the Confede- 
ration, they may be coerced ; but the citizen himself must go 
unpunished. They are States — recognized by yourselves as 
States. They are not a collection of piratical hordes ; and under 
such circumstances the law will not apply to the citizen of any of 
these States who acts fairly and honestly under his commission. 

The learned counsel who spoke last Saturday, referred to 
privateering as a relic of the barbarous age. No one agrees 



214 TBIAX, OF THE OFFICERS AND CREW 

with the learned counsel in that respect more than I do; and 
from the bottom of my heart I hope that he may be yet able to 
take his share in banishing from the world this relic of the old- 
en time. But, really, I see very little chance of advancement 
in that line, so long as a vessel of war is allowed to take private 
property on the seas. Thei-e should be perfect immunity for 
all property on the ocean belongmg to individuals ; but the let- 
ter of Mr. Marcy shows that we are not yet exactly up to that 
point. 

The learned counsel stated that, before he could concede the 
commission in this case to be a justification, two things must 
be shown : First, there must be a state of war ; and, second, 
the privateer must have received his commission from some 
public, national, sovereign power. Well, we think we have 
shown the existence of war sufiBciently strongly ; and as to this 
point, I fancy that few gentlemen of the bar can forget the 
pointed and admirable allusion of the learned counsel himself 
(Mr. Evarts), in his argument in the District Court, some time 
since, to the absent clerk, in illustrating the fact of the exist- 
ence of war. I remember how forcibly it struck me when I 
read it. The decisions in the case of the South American pri- 
vateers settles the point as to the nationality. 

But, gentlemen, there is another subject to which I will 
briefly allude — that is, the abstract right of these States legally 
to secede. Now, gentlemen, we do not deny that there is no 
such right. I concede all that. Yet, still, these men have ever 
held diiferent notions ; and, on this subject, a line has been 
drawn for many years through an immense tract of this our 
country. The right or the wrong of it does not afifect us here. 
You have failed to convince them, and they have failed to con- 
vince you. There is no common arbiter between you, because 
they contend that, being sovereigns, they cannot submit to the 
Courts questions between themselves and the United States. 
Now, they may be wrong, but have you the right to declare 
them so ? You ought to be perfectly certain. Justice, reason, 
and duty prompt that there ought to be no mistake. When, 
you hold a party for a criminal charge, there ought not to be a 
reasonable doubt. Is there no possibility that, in the course of 
the proceedings between the Federal and State Governments, 
you may be wrong ? Does truth only consort with one side of 
the line, and falsehood with the other? May you not be mis- 
taken? Look at the different lights in which, for years, you 
have respectively viewed various questions. See how gradu- 
ally the change has been effected ; and yet how stronger and 
stronger it has grown day by day. Can any one forget the deep 
and intense anxiety with which that great statesman, Mr. Clay, 
just before his death, regarded the division between the Method- 



OF THE SCHOONER SAVANNAH. 215 

ist and Baptist Churches of the North and the South ? And yet 
no man was a truer or firmer patriot, or an abler advocate of the 
Government ; and no man saw with more unerring certainty 
that the line, sooner or later, was destined to be drawn between 
the two sections, unless some compromise was effected. 

Now, the doctrine in which these men have been brought up 
may be political heresy ; but, do you crush a heresy with 
chains? Does history not tell us how utterly vain and futile 
such an attempt is ? Have you to go back farther than the 
days of James the Second, to see the attempt of that despot 
to enforce upon the English people a religion which they did 
not choose to adopt ? Can you forget the bloody assizes of 
Jeffreys, when hundreds were carried to the block and thou- 
sands were sent into exile to all parts of the world ? Can yoii 
forget the great scene, when the noble Duke of Argyle, with 
his head bared and his limbs in chains, was led through Edin- 
burgh amidst the reproaches and contempt of the populace ; 
and do jou forget the cold and manly dignity with which he 
endured it all? And do you reflect that, with all these things, 
the religion of England to-day is the same as it was then ? Can 
you expect, by a system like this, to mould the human mind 
as you would mould potter's clay ? Oh, no ! gentlemen, the 
human heart is a different thing; love and tenderness may 
melt and control it, but chains and manacles never yet subdued 
it. Call this piracy ! why this is, indeed, confounding the 
order of things ; and when the real piracy comes, you will feel 
no dislike or contempt for the offence. You give it a dignity 
by thus confounding it with crimes of a different nature. If 
these men are pirates, all are pirates who have taken naval 
commissions from the Confederate States, and all are robbers 
who have served them on land. Pirates ! Is Tatnall a pirate — 
Tatnall who, by his skill, and valor, and daring, succeeded in 
landing your gallant army in Mexico, challenging on that occa- 
sion the admiration alike of the army and navy ? Tatnall a pi- 
rate ! Tatnall, whose name has been for forty years the synonym 
of all that is high and noble and brave in the American navy ! 
Is Hartsteine a pirate — Hartsteine, the modest but hardy 
sailor, who carried your ensign into the far, remote, and un- 
friendly regions of the frigid zone? Is Ingraham a pirate — 
Ingraham, who, when the down-trodden naturalized refugee 
from Austria asked for the protection of the American flag 
said, " Do you want the protection of this flag? — then you shall 
have it !" Are these men pirates ? Oh, no ! gentlemen ; there 
is some mistake about this. Is Lee a robber — Lee, the chosen 
and bosom friend of your venerable commander in Washing- 
ton, and who, but a few months ago, parted from him with an 
aching heart and eyes brimful of tears ? Lee, a robber ! Lee, 



216 TRIAL OF THE OFFICERS AND CREW 

whose glory is yours, and wliose name is written on every page 
of your country's history which attests the triumphant march 
of your army from Yera Cruz to the gates of Mexico ? Me- 
thinks I see the flash of fire light the eye, and the curl of con- 
tempt play upon the lips, of the old hero of Lundy's Lane, as 
he hears the foul imputation upon the stainless honor of the 
well-tried friend of many years. No, gentlemen, these men 
are not pirates ! they are not robbers ! Your own hearts tell 
you they are not. Truly, it may indeed be said, that civil war 
does pervert the natural taste, and relish of equity and of 
justice. 

But, gentlemen, what is the object of this prosecution? 
Can the United States desire revenge on these men? That is 
a passion not attributable to States. States have no passion. 
The dignity and the power of a State ought to make it tolerant. 
Is it because the President's proclamation has pronounced these 
men pirates? Certainly, the respected Chief Magistrate of 
these United States has no disposition to enforce this law, sim- 
ply because he has declared it, as in the case of King Ahasue- 
rus. Is their punishment sought for the good of the commu- 
nity ? If it is designed for such a purpose, its effect is very 
questionable. 

It is extremely strange, gentlemen, that the prosecution 
should have been, any how, brought on now, and under this 
Act. Is it a strange fact, gentlemen, that, under the Act of 
William the Third, which has been cited to you, there was not, 
during the American Revolution, a single American priva- 
teersman ever brought to trial in England. And yet the En- 
glish Government repeatedly captured them, and put them in 
prison. That Act is just as strong as this, for the ninth section 
of our Act of 1790 is copied from it. I suppose the truth is, 
gentlemen, that the English Government felt the utter inap- 
plicability of that law to a case of this kind. 

But, it is time that I should draw to a close. If these men 
have been brought into the position in which they now stand, 
much depends upon their political education — much depends 
upon the different views with which they have regarded this ques- 
tion from ourselves. It is the part of humanity to err. These 
men are the representatives of those who were once united with 
us in the gentle tie of brotherhood. That tie is now rent, and 
it may be years before the kindly and good feeling which once 
subsisted between the sections is restored. God grant that the 
hour may not be far distant! But, gentlemen, to treat these 
men with kindness ; to treat them with humanity ; to have re- 
spect for that great principle which underlies the bottom of our 
own Government — the right of resistance (and I mean here le- 



OF THE SCHOONER SAVANNAH. 217 

gal resistance, and not that revolutionary resistance which the 
Courts of justice do not adopt, and never have, and cannot sanc- 
tion), — I say, to treat them with kindness and humanity will do 
more, in my honest belief, to knit together the two sections 
than a hundred battle-fields would do. 

Gentlemen, if there has been a division between you, re- 
member that that division has sprung up from honest convic- 
tion. Can you think otherwise ? Shoulder to shoulder with 
your fathers, in the days of the Revolution, their fathers fought 
the battles of freedom. Side by side with you, they trod the 
burning plains of Mexico, and encountered, in hostile strife, the 
foes of your country ; and when the shock of battle was over, 
wrapped in the same honored flag, their dead and yours were 
borne to their final resting place. Is it for a light and a trifling 
cause tbat they have thus separated from you? 

In conclusion, gentlemen, let me beg you to meet this issue 
like men. No matter what the pressure upon you is, stand 
firm, do justice, and discharge these prisoners. In so doing, 
you will but do your duty, and God himself will sanction the 
act. But, gentlemen, if deaf to the promptings of reason, of 
justice, and of humanity — 'if, impelled by political rancor and 
passion — you condemn these prisoners, and execution follows 
condemnation, be assured that they will meet their fate like 
men ; and that these manacled hands, which you have so often 
disported through your streets to excited crowds,will, " though 
impotent here," be lifted, and not in vain, to a far more august 
tribunal than this, before whose unerring decrees Courts and. 
nations alike must bow with awful reverence. 



218 TRIAL OF THE OFFICERS AND CREW 



AKGUMENT OF MR. SULLIVAN. 

Mr. Sullivan, of Counsel for the prisoners, said : 

May it please the Court : Gentlemen of the Jury : 

This case has brought to my mind an interesting episode in 
ancient history, to which I beg permission to refer. For many 
years, the States of Greece had been engaged in bloody civil 
strife, which ended in the discomjBture of Athens. The Spar- 
tans and their allies assembled in council to consider and de- 
termine on her fate. Animated by resentful passion, the 
Thebans urged extreme and vindictive measures: that Athens 
should be razed to the ground, that the hand of the victorious 
States should fall heavy, and the Athenians be proclaimed 
exiles from their homes and outlaws in Greece. This proposal 
was applauded by the Corinthians and some others, but at that 
moment the deputy of the Phocians, who owed a debt of grati- 
tude to the Athenians, sang in the assembly the mournful 
Choral Ode from the Electra of Sophocles, which moved all 
present in such a manner that they declared against the design. 
The poem had lifted them from the passion of the hour, and 
invoked the memories and ancestral glories of their common 
nation. The spirits of departed heroes now lent the inspira- 
tion of their presence, and yielding to it the members of that 
council and jury became great Greeks, as of old their fathers 
were. Marathon and Salamis, Platsea and Mycale, were pic- 
tured in the chambers of their souls, with Miltiades, Themis- 
tocles and Aristides for their counselors ; and then, and not 
until then were they fit to render a verdict upon Athens, the 
loveliest sister of them all. 

And gentlemen, before we touch upon the details of this 
case, may we not contemplate some examples and sentiments 
which will enlighten and strengthen our spirits as guardians of 
the important interests committed to our hands this day ? I 
am sure it will be agreeable to you and to seek them in the 
annals of our forefathers, 

" The great of old, 
The dead but sceptred sovereigns, who still rule 
Our spirits, from their urns." 

It may be that a voice like that of the Theban delegate, 
and like the voice of Corinth, is sounding in your ears, and 



OF THE SCHOONER SAVANNAH. 2lS> 

appealing, by sophistries, and passion, and prejudices, to you to 
lay the hand of your Government with all possible severity 
upon those of her enemies who are now in her power and 
arraigned at her bar. But I entreat you to lift yourselves to 
that stand-point from which our ancestors, who founded this 
Union, who enacted the law upon which this prosecution is 
founded, would have regarded a case analagous to that of Cap- 
tain Baker and the other defendants herein. What was the 
central and distinguishing idea of Government, blazing like 
another sun on the world, which our fathers established and 
made honorable? Was it not the imperishable doctrine of 
revolutionary right — and that without special regard to the 
names, and forms, and paths through which it might be sought ? 
For many other causes they may have pledged their fortunes ; 
there were many for which they periled their lives ; but only 
for this is it recorded by them, " We pledge our sacred honor." 
It is their incommunicable glory that they consummated their 
purpose ; and if for anything we have a place in history and a 
name in the world, it is that we have hitherto professed to be 
the special guardians of that principle among the nations. 
Will you rise with me to the dignity and affecting associations 
that surrounded and auspicated the struggle of our forefathers 
for this principle? Shall their memory be your guiding light, 
and their honorable purpose that upon which your thoughts 
will linger? Let us subject our hearts to their influence, for 
it will not mislead us. And, now, would our fathers with 
casuistry and technical constructions of a statute which they 
never meant should apply to such a case as the present, pro- 
nounce judgment of piracy and outlawry against any people 
who were making an effort, by the recognized forms of war, to 
assert revolutionary right and independent self-government for 
themselves? Never! And while the page on which our 
fathers' history is written is lustrous, it would be readorned 
with all the beauty of immortal splendor, if under it were 
written to-day, "That which the American people of 1776 
claimed for themselves (the right to ' dissolve the political 
bands that bound them to another'), they possessed the great- 
ness of soul, in 1861, to acknowledge against themselves, when 
another portion of the same race sought the same end. Be- 
guiled by the almost omnipotent sophistries of interest and 
passion, they have nevertheless adhered in loyal faith to their 
time-honored doctrine of free government. In the faithful 
devotion of the Sons, the principles of the Fathers have been 
revindicated. Henceforth the nation must stand unapproach- 
able in their greatness." 

Why I make these observations, gentlemen, is, that when 
the officers of the United States ask you to-day to find a ver- 



220 TRIAL OF THE OFFICERS AND CREW 

diet of guilty against these prisoners, they ask you to do that 
which, shape it and distort it and reason about it as they may, 
is asking you to lift an impious hand and strike a parricidal 
blow, conspicuous in the eyes of the world, against the ever 
sacred doctrine which our ancestors transmitted to us as their 
best legacy and a part of their own good name. Will you 
abandon it ? jN^ay, rather cling to it, 

"As one withstood clasps a Christ upon the rood, 
In a spasm of deathly pain." 

I wish now, gentlemen, to ask you to go with me a moment 
to the deck of the Perry ^ when she captured the Savannah 
and her crew. Let us recall the historical incidents of the 
capture, and the preparations for the trial, that we may intro- 
duce this case as justice requires. 

The Savannah was captured on the Atlantic Ocean, about 
fifty-five miles from Charleston. The Commander of the 
Perry^ who at that moment represented the United States 
Government, virtually said to the defendants herein, " We 
propose to try you as citizens of the United States, who, by 
acting under a commission of letter of marque from the Con- 
federate States, have become liable to the penalties of the Uni- 
ted States law against piracy." The prisoners at once reply, 
" If that is true, take us into the nearest ports for trial. They 
are in SouthCarolina. You claim that she is a part of the Uni- 
ted States, and that her citizens (^. e., ourselves) are amenable 
to j-^our laws, and that the United States are sovereign there. 
Take us before one of your Courts in that State and try our 
case." " Oh ! no, (say the United States) we cannot, with all 
our guns, land upon the shores of South Carolina." " Well, 
take us into the adjoining State, Georgia." "No; there is 
not an officer of the United States in Georgia. We cannot 
protect or sustain a single law in Georgia." " Well, take us to 
Florida, Alabama, Mississippi, Louisiana or Texas — any place 
along that extended coast of over two thousand miles." " No, 
(say the United States) throughout all that coast, we confess 
to you, Capt. Baker, that we have not a Court, not an officer, 
we cannot execute a single law." "Well, take us north, into 
North Carolina, or into Yirginia." The reply of the United 
States is still, " We have no place there. But, notwithstand- 
ing we admit that throughout that territory we have no prac- 
tical existence ; we have no Court ; we have no civil function- 
aries ; we have no protection for allegiance to us ; we have 
not a citizen who acknowledges his allegiance to us ; we 
admit that the people in those States have excluded our gov- 
ernment and established another, which is in active and 
exclusive control — notwithstanding all this, you are still our 



OF THE SCHOONER SAVANNAH. 221 

citizens ; and none, nor all of these facts, relieve you from the 
guilt and liability to punishment." 

The defendants are accordingly put in chains and brought 
to the District of New York for trial. The witnesses for the 
prosecution prove all the facts that are in the case, and we 
stand willing to be tried by them. They prove that the de- 
fendants did capture a brig on the high seas, which brig be- 
longed to citizens of the United States. They prove, further, 
that the defendants at the time of the capture, and in the act, 
alleged that they did so, in the name and on behalf of the 
" Confederate States of America," and by authority derived 
from them, as an act of war between the two Governments. 

The authority and intent thus alleged for the capture, were 
they honestly, or only colorably alleged ? Were they a justi- 
fication of the act, so far as this prosecution is concerned, or 
not? 

Fh'st : Was it true that the capture of the Joseph was in 
the name of the Confederate States? The fact is, that when 
the Savannah approached and summoned the Joseph to 
surrender, the captain of the Savannah stated his purpose 
to be as I have repeated ; he hoisted the Confederate flag ; he 
wore the uniform and insignia of an officer of the Confederate 
States ; he had, as the paper upon which his vessel was docu- 
mented, a paper which has been produced before us, and which 
bears the broad seal of the " Confederate States of America," 
which authorizes him to take the Savannah as a private 
armed vessel, and, in the name and authority of the Confeder- 
ate States, to " make war" against the United States and her 
vessels. The facts preclude any possible suggestion, that the 
defendants made any false pretence on the subject. The de- 
fendants had every adequate and sufficient warrant for what 
they did, if the " Confederate States of America" could give 
any authority which would constitute a defence, or if there 
was anything in the state of the contest between the United 
States and the Confederate States which constitutes loar. But, 
the question will present itself, even if the defendants had this 
warrant from the Confederate States — Did they intend to, and 
did they in fact comply with its requirements, or were they 
abusing and transgressing its license, and engaged in freeboot- 
ing? Did they intend to infract the regulations prescribed for 
their control by the Government of the Confederate States and 
imposed imperatively by the law of nations upon legitimate 
privateers, or did they intend to rob and steal ? I think I may 
safely assert that the law officers of the United States will ad- 
mit that the defendants intended in good faith to comply strict- 
ly and literally with all the conditions of their authority, pre- 
scribed by their own Government for their conduct, and also 



222 TRIAL OF THE OFFICERS AND CREW 

with the code of war in the law of nations. And not onlj 
was this their general intention, but as a fact, their conduct 
furnishes not a single deviation from these requirements. I 
read to the Court and Jury the Regulations published by the 
Confederates, for the privateers, and which were found to be 
on board of the Savannah at the time of her capture. They 
are similar, in all of their provisions, to those usually prescribed 
by civilized nations at war. In substance, they permitted the 
privateers to capture the vessels and cargoes belonging to the 
United States and her citizens, the capture to be made in the 
name of the Confederate States ; they forbade, after capture, 
any disturbance or removal of the furniture, tackle, or cargoes 
of the captured prizes, and required immediate transmission, to 
a proper Court, of the prize, for adjudication. Did the defend- 
ants comply with these terms ? The evidence is too plain that 
they did, to admit the slightest doubt. 

As soon as the Joseph was captured, a prize crew was put 
on board of her and she was sent to the care of an Admiralty 
Court in a home port, and her papers, books and crew were 
sent along, that the Court might have the fullest evidence of 
the ownership and character of the captured vessel, and be able 
to decide properly, whether or not she was liable to capture. 
If the defendants had any corrupt or furtive motives, or if they 
had been indifferent to their assumed obligations, would they 
have been so scrupulous in furnishing all the evidence to the 
Court? Did they destroy, alter or erase any evidence, or 
offer to do so ? Did they evince the least desire to have any 
other than the full facts appear with regard to all their acts ? 
Your answer, with mine, is No ! And when the vessel arrived 
in port, observe what proceedings were instituted by the agent 
of the captors. He did not offer to sell the vessel and cargo 
at private sale ; he did not offer to submit her disposition to 
the adjudication of any merely State Court; but caused her to 
be libeled in a Prize Court, constituted on precisely the same 
basis, and enforcing the identical rules of law with the United 
States Prize and Admiralty Court, which convenes in the room 
adjoining to that in which we now are. In fact, I am safe in 
saying that the decisions of our Courts here are controlling 
precedents in the Court wherein the brig Joseph was tried and 
condemned as a prize of war. The trial was in a Court known 
to and recognized by the law of nations. Now, gentlemen, I 
certainly need do no more than thus re-advert to the facts in 
evidence to remove from your minds the slightest suspicion 
that the defendants ever intended to violate the laws of war 
or the instructions received from their Government when they 
received their letter of marque. 

Perhaps, however, the question may arise, — whether tlie 



OF THE SCHOONER SAVANNAH. 223 

defendants did regard the commission under which they sailed 
as competent and adequate authority to justify their acts ; or 
were they distrustful of its sufficiency ? I do not admit, gen- 
tlemen, that that is a consideration to which in this trial we 
should recur, for your decision must rest on other grounds. 
But, I will not hesitate to say, that it is morally impossible for 
any man who has heard the evidence, and who is familiar with 
the course of events in the South, to believe that the defend- 
ants did not act in the fullest confidence that the authority 
of the Confederate States was ample and just authority for 
their undertaking. Even that one of the Savannah's crew 
who has become a witness for the prosecution, under a nolle 
prosequi^ asserted on the stand, that at the time the Savannah 
was being fitted out for her cruise as a privateer, no one in the 
community of the South seemed to have any other idea but 
that the Government of the Confederate States was completely 
and legally established, and that every citizen of those States 
owed to it supreme allegiance. They believed that a letter of 
marque from the Confederate States constituted as good author- 
ity for privateering as the letters which were issued by our 
revolutionary fathers in '76, or as if they were issued by the 
United States. But, gentlemen, we are to proceed one step 
further, for under the theory presented by attorneys for the 
prosecution, they virtually admit that there was good faith on 
the part of the prisoners, and that they intended to comply 
with the restrictions imposed by the authority which they 
carried out of port with them. But they say that, inasmuch 
as the Confederate States were not a recognized Government, 
they could not confer any right upon the defendants to act as 
privateers, which could justify them in a plea to the pending 
charge. That is a proposition which enfolds the real issue in 
this trial. The difficulties in respect to its solution do not ap- 
pear to me to be great, and I am satisfied that the more they 
are examined the less they will appear to candid minds. 

Had the Government of the Confederate States a right to 
issue letters of marque ; or, in other words, to declare and wage 
war? Tlie denial of that right, by the attorneys for the United 
States, involves them in inextricable embarrassments, and must 
expose the fallacies which lie at the bottom of the erroneous 
reasonings of the prosecution. 

In the first place, it is substantially an assertion, on the part 
of the United States, of the doctrine, '■''Once a sovereign always 
a sovereign^'' — that the United States Government cannot — by 
revolution accomplished — by the Act of the States repealing 
their ordinances of union — by any act of the people establishing 
and sustaining a difierent Government — be divested of their 
former sovereignty. Or, in the language of Mr. Evarts, until 



224 TRIAL OF THE OFFICERS AND CREW 

there has been some formal acquiescence, some assent, some 
acknowledgement by the executive authority of the United 
States of the independence of the Confederate States, there can 
be no other plea, and no progress in any line of investigation, 
with a view to a defence of these defendants in a Court of jus- 
tice of the United States. Upon that point, I beg to be under- 
stood as taking an issue as wide as it is possible for human 
minds to differ ; and I am bold to assert that the doctrine can- 
not be maintained successfnlly in a capital case of this kind. 
It is not true that a recognition of the Confederate States by 
the United States executive, in a formal and distinct manner, 
is requisite to entitle them and their citizens to the rights be- 
longing to a nation, in the eye of this Court. An acknowledg- 
ment of independence would be one way of proving the fact, 
but is far from being the only way. Proof of such an acknowl- 
edgment by a formal State paper would, of course, term- 
inate this prosecution ; but, in the absence of that fact, there 
may be a recurrence to others, which will suffice as well, 
and satisfy the Court and Jury that the Confederate States 
must, at least, to a certain extent, be regarded as a nation, en- 
titled to the usual consideration belonging to a nation at war. 
To show how unreasonable the proposition is, and to illustrate 
how impossible it is to accept it, let me submit a supposition : 

If, for fifty years to come, the United States shall not re- 
establish her sovereignty and restore her laws and power over 
the seceded States, and the latter shall continue to maintain an 
open and exclusive Government ; and if the United States shall 
still refuse to recognize the new Government by formal docu- 
mentary record, would the refusal then warrant the United 
States in capturing Confederate armies of a new generation, 
and punishing them for treason and piracy? And, if so fifty 
years hence, would it continue twice or thrice fifty years? 
Or what is the limit? The difficulties in the answer can be 
avoided in only one way, and that is, to conclude that the ac- 
knowledgment of the independence of the revolutionizing sec- 
tion is of no consequence at all, for all the purposes of this case, 
provided the fact of independence and separate Government 
really exists, and is proven. A de facto Government, merely, 
must be allowed by every sound jurist to possess in itself, for 
the time being, all the attributes and functions of a Government 
dejure. It may properly claim for itself, and the citizen may 
rightfully render to it, allegiance and obedience, as if the Gov- 
ernment rested on an undisputed basis. 

This is a rule never denied in the law of nations. History has 
scarcely a page without its record of revolution and dynastic 
struggle to illustrate this rule. The official a.Q,\.& oi a, de facto 
Government affecting personal rights, title to property, the ad- 



OF THE 8CH00NEE SAVANNAH. 225 

ministration of justice, the organization of its society, and inj- 
posing duties on the citizens, receive that consideration which 
belongs to acts of long-established Governments. 

The successor does not pronounce the laws of the predeces- 
sor null. He simply repeals them, with a clause protecting 
all vested rights. This {principle is correct, even in case of an 
usurping monarch ; but how much more, if it shall appear that 
the people who are to be governed, have, for themselves, with 
mutual concurrence and choice, cast off the former Government, 
and organized a new one, avowing to the world their purpose to 
maintain it, and at the same time yielding to it the obedience 
which it requires? 

When that state of facts shall occur, and a people suffi- 
ciently numerous to enable them to fultill the duties of a nation, 
and with a territory sufficiently compact to enable its Govern- 
ment to execute its functions without inconvenience to the 
world, shall evince its purpose and a fair assurance of its ability 
to maintain an independent Government, it will be a surprise, 
indeed, to hear, in this country, that such a people are still 
liable to felons' punishment and pirates' doom. It is no longer 
a case of insurrection or turbulent violence. It has ceased to 
be a tumult or a riot. The war between the original Govern- 
ment and the revolutionary Government may still continue, 
but no longer can it, with propriety, be said that the array is 
merely the posse comitatus, dispersing and arresting oifenders 
against the law. The conflicting parties must, at least for the 
time, ije deemed two distinct people — two different nations. The 
evidence in this case and the public history of the day, show 
that such is the condition of the United States and the Confed- 
erate States. In addition thereto, the United States have, by 
repeated acts, indicated that they so regarded the fact. The 
prnicipal witness fur the prosecution testified that he repeat- 
edly saw the officers of the United States negotiating, through 
flaj^s of truce, with the officers of the Confederate States ; and 
that always the flag of truce from the Confederate States was 
displayed with their Government flag, but that fact never pre- 
vented the negotiation. This was well known to our Govern- 
ment. We have in evidence, also, the agreement of capitula- 
tion at the surrender of the Forts at Hatteras Inlet. The rep- 
resentative of the United States signed that official document 
and accepted it for his Government, with the signature of Com- 
mander Barron to it as " commanding the forces of the Con- 
fedeiate States," etc. That was a virtual recognition that there 
is such a Government, de facto. 

A few days since our Government published another gen- 
eral Older, or document, directing that a certain number of 
prisoners, captured in arms against the United States, and when 
15 



226 TRIAL OF THE OFFICERS AND CREW 

fighting under regular enlistment the army of the Confederate 
States, should be released as " jjrisoners of wa;-," because the 
Confederate States had released a similar number. That was 
an exchange of prisoners of " war," and another virtual ac- 
knowledgment that the Confederate States constitute a Govern- 
ment. Remember that these " prisoners of war" had, if they 
were citizens of the United States, violated the law in the first 
section of the statute under the eighth and succeeding sections 
of which this prosecution is founded. One class were fighting 
on land against the United States, and the penalty is death by 
the statute. The defendants here fought on water ; and there is 
the same penalty, if either is liable to the penalties of the 
statute. Both classes fought under the same flag and received 
their commission from the same Government. If one class are 
" prisoners of war" in the opinion of the Government of the 
United States, so must the other be. It Is impossible to recede 
from the consequences of the virtual recognition of belligerent 
rights involved in the exchange of these captives, under the 
chosen designation of " prisoners of war." How, then, doth 
the dignity of our Government suff'er by this prosecution ! It 
evinces an indecision, a caprice, a want of consistency and 
character on the part of the Government. It is an unfortunate, 
and I hope an unpremeditated one. The good name of the 
nation is involved, unnecessarily, by the mere fact of arraign- 
ment of these defendants under an indictment ; but your 
verdict of " not guilty" may yet save it. 

The Jury will and must accept the construction which the 
Government has in fact put on the law, viz., that it does not 
apply, and was never intended to apply, to such a state of 
affairs as the present revolution has brought about. 

Let me illustrate further the absence of all reason to sup- 
port the proposition that, until a formal acknowledgment of the 
existence of the Confederate States by the United States, the 
official acts of the former cannot be regarded as having any 
validity, or as affording protection to their citizens. Go beyond 
our own borders, to countries where the sovereign is an indi- 
vidual, with fixed hereditary right to reign, and where the 
doctrine established is that which I repudiate, " Once a sove- 
reign, always a sovereign," and that the sovereign rules by 
divine right and cannot innocently be superseded. If the 
doctrine affirmed in this case be true, that to give validity to 
the acts of a Government established by a revolution the pre- 
ceding Government must have recognized its existence, then 
the world will be sadly at fault. Show me where the King of 
Naples has acknowledged the kingship of Victor Emanuel? 
Show me where the sovereigns of Parma and Modena and 



OF THE SCHOONER SAVANNAH. 227 

Tuscany have consented to the establishment of the new 
government in their territory? 

But the people have voted in the new Government, and they 
maintain it ; and Victor Emannel is, in spite of Xing' Bomba, 
^<?,/aci!c», Kingof ISIaples; and Victor's commissions to his army 
and navy, and his letters of marque, will be recognized in 
every court in every enlightened nation. 

Even in Italy, the Courts of Justice would, when the case 
arose that required it, enforce the same regard to the existing 
Government as if the former sovereigns bad formally relin- 
quished their claims to sovereignty. Again, I say, the act of 
the people is entitled to more weight in an inquiry, " what is 
the Government ?" than the seal and recognition of the former 
sovereign. 

As Americans, imbued with correct opinions upon the rela- 
tion of the governed to the governing, your hearts reject the 
theory propounded by this prosecution, and concur with me. 

To vindicate your opinion you will find the defendants 
herein " not guilty." 

Come to our own recent history. Texas was one of the 
States of the Union which is called Mexico. Texas seceded 
from that Union. She declared her independence, and during 
a struggle of arms became a de facto Government. Mexico 
would not recognize her independence, and continued her in- 
tention to restore her to the old Union. The United States, 
however, recognized the right of Texas to her independence, 
and invited her to enter into our Union, and did incorporate 
her in that Union in defiance of the doctrine of Mexico, " once 
a sovereign, always a sovereign until independence shall be 
acknowledged." We then denounced that doctrine, but now 
we seem ready to embrace its odious sentiments. We placed 
our declaiation on record before the world, that Texas, by her 
act alone, unauthorized and unrecognized by the central 
Government of Mexico, had become a sovereign and independ- 
ent State, invested with full power to dispose of her territory 
and the allegiance of lier citizens, and, as a sovereign State, to 
enter into compacts with other States. 

Have not the Courts of the United States sanctioned that 
proceeding? Suppose that Hungary, or Venice, or Ireland 
shall separate from their present empires and establish Gov- 
ernments fur themselves, what will be our position ? Let your 
verdict in this case determine. 

It is, perhaps, well, now, to recur to the law of nations. 
That 18 a part of the common law of England and of this 
country. We may claim in this Court the benefit of its en- 
lightened and humane provisions, as if they were embodied in 
our statutes. There are circumstances in the history of every 



228 TRIAL OF THE OFFICERS AND CREW 

natiori, when the law of nations supervenes upon the statutes 
and controls their literal interpretation. 

If the case becomes one to which the law of nations is 
applicable, it thereby is removed from the pale of the statute. 
Such is the present case. In the seceded States a Government 
has been established. It has been hitherto maintained by- 
force, it is true, as against the United States, but by consent of 
the people at home ; and both sides have taken up arms, and 
large armies now stand arrayed against each other, in support 
of their respective Governments. It is all-important to the 
cause of justice, and to the honor of the United States, to see 
that in their official acts, in their treatment of prisoners, either 
of the army or captured privateers, they conform to the rules 
recognized as binding, under similar circumstances, by civil- 
ized and Christian nations, and sanctioned by the authoritative 
publicists of the world. I will recall your attention to extracts 
from Yattel, and with the firmest confidence that they will 
vindicate my views, that the defendants are entitled to be held 
as prisoners of w^ar, and not as criminals awaiting trial : 

Vattel, Book III., chapter 18, sec. 292 : 

*' When a party is formed in a State, which no longer obeys the sovereign, 
and is of strength suflQcient to make a head against him, or when, in a Repub- 
lic, the nation is divided into two opposite factions, and both sides take arms, 
this is called a civil war. Some confine this term only to a just insurrection 
of subjects against an unjust sovereign, to distinguish this lawful resistance 
from rebellion, which is an open and unjust resistance ; but what appellation 
will they give to a war in a Republic torn by two factions, or, in a Monarchy, 
between two competitors for a crown ? Use appropriates the term of civil 
war to every war between the members of one and the same political 
society." 

Subsequent clause in same section : 

" Therefore, whenever a numerous party thinks it has a right to resist the 
sovereign, and finds itself able to declare that opinion, sword in hand, the 
war is to be carried on between them in the same manner as between two 
diflferent nations ; and they are to leave open the same means for preventing 
enormous violences and restoring peace." 

Last clause in section 295 : 

" But when a nation becomes divided into two parties absolutely independ- 
ent and no longer acknowledging a common superior, the State is dissolved, 
and the war betwixt the two parties, in every respect, is the same with that 
in a public war between two different nations. Whether a Republic be torn 
into two factious parties, each pretending to form the body of the State, or a 
Kingdom be divided betwixt two competitors to the Crown, the nation is 
thus severed into two parties, who will mutually term each other rebels. 
Thus there are two bodies pretending to be absolutely independent, and who 
having no judge, they decide the quarrel by arms, like two diflferent nations. 
The obligation of observing the common laws is therefore absolute, indispens- 



OF THE SCHOONER SAVANNAH. 229 

able to both parties, and the same which the law of nature obliges all 
nations to observe between State and State.-" 

" If it be between part of the citizens, on one side, and the sovereign, with 
those who continue in obedience to hira, on the other, it is sufficient that the 
malcontents have some reasons for taking arms, to give this disturbance the 
name of civil war, and not that of rebellion. This last term is applied only 
to such an insurrection against lawful authority as is void of all appearance 
of justice. The sovereign, indeed, never fails to term all subjects rebels open- 
ly resisting him ; but when these become of strength sufficient to oppose him, 
so that he finds himself compelled to make war regularly on them, he must 
be contented with the term of civil war." 

Clause of section 293 : 

" A civil war breaks the bands of society and government, or at least it 
suspends their force and effect. It produces in the nation two independent 
parties, considering each other as enemies, and acknowledging no common 
judge. Therefore, of necessity, these two parties must, at least for a time, be 
considered as forming two separate bodies — two distinct people. Though one 
of them may be in the wrong in breaking up the continuity of the State — to 
rise against lawful authority — they are not the less divided in fact. Besides, 
who shall judge them? On earth they have no common superior. Thus 
they are in the case of two nations who, having dispute which they cannot 
adjust, are compelled to decide it by force of arms." 

First clause in sec. 294 : 

" Things being thus situated, it is evident that the common laws of war, 
those maxims of humanity, moderation and probity which we have before 
enumerated and recommended, are, in civil wars, to be observed on both 
sides. The same reasons on which the obligation between State and State is 
founded, render them even more necessary in the unhappy circumstance 
when two incensed parties are destroying their common country. Should 
the sovereign conceive he has a right to hang up his prisoners as rebels, the 
opposite party will make reprisals ; if he does not religiously observe the 
capitulations and all the conventions made with his enemies, they will no 
longer rely on his word ; should he burn and destroy, they will follow his 
example ; the war will become cruel and horrid ; its calamities will increase 
on the nation." 

Eemember you are an American Jury ; that your fathers 
were revolutionists ; that they judged for themselves what Gov- 
ernment they would have, and they did not hesitate to break 
off from their mother Government, even though there were 
penalties of statutes with which they were threatened. And 
remember, also, that from the beginning of your fathers' revo- 
lution, they claimed that they were not liable to the treatment 
of offenders against British statutes, but that the Colonies were 
a nation, and entitled to belligerent rights — one of which was, 
that if any of their army or navy fell into the hands of the 
British army, they should be held as prisoners of war. 

Your fathers never admitted that the continental arinrhy were 
liable to punishment with the halter^ if taken prisoners. 

To be sure, the statute of Great Britain, literally construed, 
so provided, but the law of nations had supervened, and ren- 



230 TRIAL OF THE OFFICERS AND CREW 

dered that statute no longer applicable. Vindicate your re- 
spect for your fathers' claims, by extending the same immuni- 
ties to the prisoners at the bar, whose situation is analogous to 
that of our fathers. 

At the commencement of the Revolution, preceding the 
Declaration of Independence in 1776, the Colonies became 
each a separate sovereignty. That became the status^ with 
some, without documentary declaration to that effect ; but most 
of them have left on record positive enunciations of their as- 
sumption of independence and sovereignty as States, uncon- 
nected with the proceedings of any other State.'^ They entered 
into a Confederation as independent States, declaring, how- 
ever, distinctly, in a separate article, that each State retained 
its own sovereignty, freedom, and independence, and every 
power of jurisdiction and right not expressly delegated to the 
United States in Congress assembled. And at the close of the 
war, when the treaty of peace was made, recognizing the in- 
dependence of the Colonies, each State was named individual- 
ly. I have never been able to discover when and where, since 
that period, any State has surrendered its sovereignty, or de- 
prived itself of its right to act as a sovereign. The Constitu- 
tion suspends the exercise of some of the functions of sover- 
eignty by the States, but it does not deprive them of their 
power to maintain their rights as sovereigns, when and how 
they shall think best, if that Constitution shall, in their judg- 
ment, be broken or perverted as a delegated trust of power. 

Listen, therefore, to the better voices whispering to each 
heart. Kemember, the honor and consistency of the United 
States are involved in this case. By a conviction of the defend- 
ants, you condemn the Revolution of your ancestors ; you sus- 
tain tiie theories of the worst courtiers who surrounded George 
III. in his war to put down the rebellion ; you will appear to 
the world as stigmatizing revolutionists with the names of out- 
laws and pirates, which is the phraseology applied to them by 
Austria and Russia ; you will violate the law of nations ; you 
will appear to be merely wreaking vengeance, and not making 
legitimate war ; you will henceforth preclude your nation from 
offering a word of sympatlj}'' to people abroad who may be 
struggling for their independence, and who have heretofore 
always turned their hearts to you. You can never — having 
punished your revolutionists on the gallows — send an invitation 



* An interesting fact, not published previously, I believe, has been commu- 
nicated to the public recently by Mr. Dawson, of New York, a historical studect 
and writer of great research and culture. He has found an original minute in 
the records of the General Court of Massachusetts, whereby, as early as May 
iBt, 1176, the sovereignty and independence olthat Colony was declared formally.. 



OF THE SCHOONER SAVANNAH. 231 

to the unfortunate champions of independent Government in 
the old world. Kossuth will reply: The American maxim is 
that of Francis Joseph, and of Marshal Haynan. You cannot 
say " Godspeed !" to Ireland, if she shall secede. No ! as you 
love the honor of your country, and her place among nations, 
refuse to pronounce these men pirates. 

Tell your Government to wage manly, open, chivalric war 
on tlie field and ocean, and thus or not at all; that dishonor is 
worse even tlian disunion. Stain not your country's hand 
with blood. If I were your enemy, I would wish no worse for 
your names, than to record your verdict against these prisoners. 
Leave no such record against your country in her annals ; and 
when the passions of the hour shall have subsided, your ver- 
dict of acquittal of Thomas H, Baker and the other defendants 
herein, will be recalled by you with satisfaction, and will re- 
ceive the approval of your countrymen. 



ARGUMENT OF MR. DAVEGA. 

May it please your Honors : Gentlemen of the Jury : 

On the 25th of June last, when the startling intelligence 
was announced in our daily papers of the capture of the so- 
called Pirates of the Savannah.^ our community was thrown 
into 2i furore of excitement. Every one was anxious to get a 
glimpse of the " monsters of the deep," as they were carried 
manacled through our streets. Some expected to see in Cap- 
tain Baker a " counterfeit presentment " of the notorious 
Captain Kidd ; others expected to trace resemblances in 
Harleston and Passalaigue to Hicks and Jackalow ; but what 
was their surprise when they discovered, instead oi fiends in 
human shape, gentlemen of character, intelligence, refinement, 
and education ! Captain Baker is a native of the Quaker City, 
Harleston and Passalaigue of the State of South Carolina, — all 
occupying the best positions in society, and respectably connect- 
ed. The father of Harleston was educated in one of our North- 
ern universities, and, by a strange coincidence, one of his class- 
mates was no less a person than the venerable and distinguished 
counsel who now appears in behalf of his unfortunate son. 
(Tlie counsel directed his eyes to Mr. Lord.) Another strange 
coincidence in the case is, that twelve men are sitting in judg- 
ment upon the lives of twelve men, and these men "enemies 
of the country, enemies of war," and as such are entitled to the 
rights of prisoners of war. 



332 TRIAL OF THK OFFICERS AND GREW 

They do not beloiig to your jurisdiction ; their custody 
belongs exclusively to the military and not the civil power. 
Instead of being incarcerated as felons, in the Tombs, they 
should have been imprisoned in Fort Lafayette, as prisoners of 
war. They are your enemies to-day ; they were your friends 
yesterday. It is no uncommon occurrence that when two men 
engage in a quarrel, ending in a fierce combat, they are after- 
wards better friends than they were before ; the vanquished 
magnanimously acknowledging the superiority of the victor, 
and the victor in return receiving him kindly. And so, gen- 
tlemen, I hope the day is not far distant when the Stars and 
Stripes will float in the breeze upon every house-top and every 
hill-top throughout the length and breadth of our glorious 
Republic : then shall we establish the great principle, for 
which our forefathers laid down " their lives, their fortunes, 
and their sacred honor," that this is a Government of consent, 
and not of force ; and "that free governments derive their just 
powers from the consent of the governed." 

In this case some of the gravest and most complicated 
questions of political and international jurisprudence are 
involved. 

The learned counsel who have preceded me have so fully 
and ably argued the political questions involved, that it would 
be the work of supererogation for me to go over them ; but in 
this connection it is not inappropriate to refer to the fact that 
political opinions instilled into the minds of the prisoners may 
have influenced their conduct. They were indoctrinated with 
the principles of political leaders who advocated States* Rights, 
Nullification, and Secession ; and without undertaking to 
justify or approve the soundness or correctness of their views, 
it is enough for me to show that the prisoners at the bar were 
actuated by these principles. The name of John C. Calhoun 
was once dear to every American; his fame is now sectional. 
Every Southerner believes implicitly in his doctrines; his very 
name causes their bosoms to swell with emotions of pride ; hia 
works are political text books in the schools. It has been 
facetiously said that when Mr. Calhoun took a pinch of snuflf, 
the whole State of South Carolina sneezed. I do not mean to 
treat this case with levity, but merely intend to show the sym- 
pathy that existed between Mr. Calhoun and his constituents. 
Then what is the " head and front of their offending " f They 
conscientiously believed that allegiance was due to their State, 
and she in return owed them protection ; and under such con- 
victions enlisted in her behalf. If they have erred, it was from 
mistaken or false notions of patriotism, and not from criminal- 
ity. It is the intent that constitutes the crime. And this is 
the only just rule that should obtain in human as well as divine 
tribunals. 



OF THE SCHOONER SAVANNAH. 233 

The prisoners at the bar stand charged with the offence of 
piracy. I contend that they do not come within the intention 
and purview of the statute against piracy. To understand and 
properly interpret a law, we must look to the intention of the 
legislator, and the motives and causes which give rise to the 
enactment of the law. In the construction of a will, the in- 
tention of the testator is to be ascertained; and the same rules 
apply in the just interpretation of every law. These laws 
were enacted at a period when peace and prosperity smiled 
upon this country. If they had been passed during Nullifica- 
tion in 1832, when the disruption of the Union was threatened, 
then we might reasonably infer that they were intended to 
apply to the existing state of affairs ; so that the irresistible 
conclusion is, that they were applicable only to a state of peace, 
and not to a state of war. 

The question then arises, Does a state of war exist ? The 
learned counsel for the prosecution (Mr. Evarts), in an able and 
elaborate argument for the Government, when this question 
arose in the trial of prize causes, in the other part of this Court 
(when it was the interest of the Government to assume that 
position), demonstrated clearly, to my mind, that a state of war 
did exist, and confirmed his views by citations from the best 
authorities on international law. 

Yattel, who ranks among the first of authors, and whose work 
on the law of nations is recognized by every enlightened jurist 
throughout the civilized world, defines " war to be that state, 
where a nation prosecutes its rights by force." That this is a 
nation no one will doubt ; that it is prosecuting its rights can 
not be denied ; and no one will doubt that it is using force upon 
a stupendous scale — requiring four hundred millions of dollars, 
and 500,000 men, with the probability of additional requisi- 
tions of men and treasure for a successful termination of this 
fratricidal war. 

It may be said that this is a civil war. Admitting it to be 
so, the only distinction between this and an international war 
is, that the former is an intestinal war between the people, 
where the Kepublic is divided into two factions, and the latter 
is where two nations are opposed to each other. All the rules 
of civilized war, therefore, should govern equally, and it is to 
soften and mitigate the horrors of civil war that an exchange 
of prisoners is recognized. 

I have endeavored to show that the prisoners at the bar are 
not guilty of piracy, as defined by the Acts of Congress ; and 
if they are not guilty of municipal piracy, they are certainly 
not guilty of piracy by the law of nations. What is a pirate ? 
He is defined to be an enemy of the human race — a common 
sea rover, without any fixed place of residence, who acknowl- 



2S4 TKIAl. OF THE 0FFICEK8 AND CREW 

edges no sovereign, no law, and supports himself by pillage 
and depredation. Do the prisoners come within the meaning 
of this definition? Did they not encounter a British vessel 
upon the high seas ? Could they not have captured her? But, 
no, gentlemen of the Jury, as soon as they ascertained that she 
belonged to a nation in amity with theirs, they allowed her to 
depart in peace. With the permission of the Court, I would 
beg leave to refer to an authority entitled to high respect — the 
works of SirLeoline Jenkins, 4:th Institutes, p. 154, where this 
principle is laid down : " If the subjects of different States com- 
mit robbery upon each other upon the high seas, if their respect- 
ive States be in amity, it is piracy ; if at enmity, it is not, for it is 
a general rule that enemies never can commit piracy on each 
other, their depredations being deemed mere acts of hostility." 

The prisoners were acting in good faith, by virtue of a 
commission under the seal of the Confederate States. It 
is said, by the learned counsel for the prosecution, that the 
prisoners were acting under the authority of a person named 
Jefferson Davis. Tliis does so appear nominally, but it is vir- 
tually and actually a commission issuing from eight millions 
of people, who recognize and sanction it under the hand of 
their President and the seal of their Government — each one 
heing particeps criminis, and each one being amenable to the 
laws of the country, and liable to the penalties of treason and 
piracy, if evenhanded justice is to be meted out. 

I have not yet been able to perceive the distinction between 
this offence as committed upon sea or land, except that it is at- 
tended with more danger. Why, then, have not the prisoners 
captured by our armies, who are now in Fortress Monroe and 
Fort Lafayette, been brought to the bar of justice? Because 
the Government has come to the conclusion that it would be 
unwise, impolitic, and impracticable ; our tribunals would be 
inadequate in the administration of the laws. But justice should 
be equal. 

One of the learned Judges who charged the Jury in the 
case of the privateers who were tried in Philadelphia, has un- 
dertaken to establish the doctrine that rebellion is wrong, and 
that it is only justifiable when it acquires the form of a success- 
ful revolution. To analyze this doctrine, it means no more nor 
less than this : that that which was originally wrong, success 
makes right. To carry out the metaphor, a certain insect in its 
chrysalis state is the loathsome and detestable caterpillar, but 
■when it assumes the form and variegated hues of the butterfly, 
it is glorious and beautiful to behold. With equal force of rea- 
son it might be said, that if the Father of his country had been 
unsuccessful in consummating our independence, his name, in- 
stead of going down to posterity in glory and honor, would 



OF THE SCHOONER SAVANNAH. 235 

have descended in infamy and disgrace to all succeeding gen- 
erations. Such notions are unworthy of refined and enlight- 
ened civilization. 

It was intimated by the learned District Attorney, in his 
opening remarks, that in the event of a conviction, the Presi- 
dent would exercise the pardoning prerogative. Gentlemen, 
this is a delusion. I do not mean to insinuate that the learned 
counsel would willfully mislead you ; for I am bound to admit, 
in all becoming candor, that the prosecution have acted with 
fairness and magnanimity highly creditable, and not in any 
manner inconsistent with t\iQ ^erfo7'7nance of their arduous and 
responsible duties ; but I do say that it should not have the 
slightest weight in your deliberations upon the important ques- 
tions involved in this case. Is this a mere form — a farce? is 
your time, and the valuable time of the Court, to be consumed 
in the investigation of a long and tedious case like the present 
as a mere pastime? It is a reflection upon the good sense and 
intelligence of a Jury, for the Executive to exercise the par- 
doning power, except in special cases, where new evidence is 
discovered after conviction which may go to establish the in- 
nocence of the party so convicted. 

Gentlemen of the Jury, you have a duty to perform that re- 
quires almost superhuman nerve and moral courage — requiring 
more prowess than to face the cannon's mouth. You have it 
in your power to prove to the nation, and to the whole civilized 
world, that in the administration of the criminal laws of the 
country, in a case involving the rights and interests of this 
Republic, before a Jury of New York citizens, that '-^justice 
can triumph over jyassion^ and reason frevail over jprejudiceP 
If there is no other feeling which can influence your judgment, 
if you have no sympathy in common with these men, there is 
a sympathy you should have — a sympathy for those brave and 
valiant spirits who fought so nobly for the Union, the Consti- 
tution, and the enforcement of the laws, and who are now pris- 
oners of war in the power of the enemy ; and it would be ex- 
pecting too much clemency from the hands of the enemy to 
suppose that they would allow the sacrifice of these men to go 
unavenged. 

I repeat, you have a solemn duty to perform, and public 
opinion should not have the slightest influence upon your mind. 
You are to be governed by a " higher law ;" a law based upon 
the sacred precepts of Holy Writ — its teachings emanating from 
God himselt; and therein you are commanded to observe that 
golden rule, " Do unto others as you would that they should 
do unto you." 



236 TRIAL OF THE OFFICERS AND CREW 



ARGUMENT OF JAMES T. BRADY, ESQ. 

Mr. Brady inquired of Mr. Evarts tor what purpose he 
intended to refer to the statute against treason. 

Mr. Evarts : Not in any other light than I have ah-eady 
referred to the doctrine of treason, to wit, that a party cannot 
be shielded from indictment for the crime of piracy by show- 
ing a warrant or assumed authority for acts which made out 
that his crime was treason ; that showing a treasonable combi- 
nation did not make out a warrant or authority for that which 
was piracy or murder. 

Mr. Brady then proceeded to address the Jury on behalf 
of the accused : 

May it please the Court : Gentlemen of the Jury : 

I feel quite certain that all of you are much satisfied to find 
that this important trial is rapidly drawing to a close ; and 1 think 
it would be unbecoming in me, as one of the counsel for the 
accused, to proceed a step farther in my address to you without 
acknowledging to the Court the gratitude which we feel for their 
kindness in hearing so largely discussed the grave legal questions 
involved in this controversy ; to the Jury, for their unvarying 
patience throughout the investigation ; and to our learned oppo- 
nents, for the frank and open manner in which the prosecution 
has been conducted. Our fellow-citizens at the South — cer- 
tainly that portion of them who cherish affection for this part 
of the Union — will find in the course of this trial most satisfac- 
tory evidence that respect for law, freedom of speech, freedom 
of discussion, liberty of opinion, and the rights of all our 
countrymen, here exist to the fullest extent. All of us have 
heretofore been connected with interesting and exciting trials. 
I am warranted in saying that, considering the period at which 
this trial has occured, and all the facts and circumstances 
attending it, the citizens of New York have reason to be proud 
that such a trial could proceed without one word of acerbity, 
without one expression of angry feeling, or one improper exhi- 
bition of popular sentiment. At the same time, as an American 
citizen, loyal to the Union, — one who has never recognized as 
his country any other than the United States of America ; who 
has known and loved his country by that name, and will so 
continue to know and love it to the end of his existence, — I 
deeply regret that, for any purpose of public policy, it has been 
deemed judicious to try any of these "piratical" cases, as they 



OF THE SCHOONER SAVANNAH. 23T 

are denominated, at this particular juncture. I am not to 
assume that good reasons for such a proceeding have not in 
some quarters been supposed to exist; and I certainly have no 
right to complain of the officers of the law, charged with a high 
duty, who bring to trial, in the usual course, persons charged 
■with crime. I have not a word to say against my friend the 
District Attorney, for whom I feel a respect I am happy to 
express ; nor against his learned associate, Mr. Evarts, for whom 
I have high regard ; nor our brother Blatchford, who always 
performs the largest amount of labor with tlie smallest amount 
of ostentation. Still I regret the occurrence of t})is trial at a 
time when war agitates our country ; for, apart from all theo- 
ries of publicists, all opinions of lawyers, fur you or me to say 
that there is not a war raging between two contending forces 
within our territor}'^, is to insult the common sense of mankind. 
A war carried on for what? What is to be its end, gentlemen 
of the Jury ? This war to which you, like myself, and all classes 
and all denominations of the North have given a cheerful and 
vigorous support — pouring out treasure and blood as freely as 
water — what is it for? Not to look at the result which must 
come out of it is folly ; and it is the folly that pervades the 
whole American people. Suppose it were now announced that 
the entire Southern forces had fled in precipitate retreat before 
our advancing hosts, and that the American flag waved over 
every inch of American soil — what then? Are we fighting to 
subjugate the South in the sense in which an emperor wuuld 
make war upon a rebellious province? Is that the theory? 
Are we fighting to compel the seceded States to remain in the 
Union against their will? And do we suppose such a thing 
practicable? Are we fighting simply to regain the property 
of the Federal Government of which we have been despoiled 
in the Southern States? Or are we fighting with a covert and 
secret intention, such as I understand to have been suggested 
by an eloquent and popular divine, in a recent address to a 
large public audience, some of them, like himself, from the 
Bay State, " that Massachusetts underntands very well what she 
is fighting for"? Is it to effect the abolition of slavery all over 
the territory of the United States? I will do the Administra- 
tion the justice to say that, so far as it has given the country any 
statement of its design in prosecuting the war, it has repelled 
any such object as negro emancipation. Who can justify the 
absurd asj^ect presented by us before the enlightened nations 
of the Old World, when they find one commander in our army 
treating slaves as contraband of war ; another declaring that 
they belong to their masters, to whom he returns them ; and 
another treating them all as free. I am an American, and feel 
the strongest attachment to my country, growing out of affec- 



238 TRIAI. OF THE OFFICERS AKD CREW 

tion and duty ; but I cannot see that we present before the 
world, in earring on this war, anything like a distinct and pal- 
pable theory. But I tell you, and I stand upon that prophecy, 
as embodying all the little intelligence I possess, that if it be 
a war for any purposes of mere subjugation — that if it be for 
the purpose of establishing a dictatorship, or designedly waged 
for the emancipation of all the slaves, our people never will 
sustain it at the North. (Applause, whicli was checked by the 
Court.) 

You will see presently, gentlemen, why I have deemed it 
necessary, at the very outset, to .speak thus of what I call a 
state of civil war, — a condition wiiich, if the learned Judges 
on the bench, in their charge to you, shall, as matter of law, 
declare to have existed, then this commission, under which 
the acts charged in the indictment were perpetrated, forms an 
absolute legal protection to the accused. Whether such a war 
exists, is one of the great questions with which the Jury have 
to deal ; and I understand that the Jury have to deal with this 
case — that they are not mere aiitotnata — that we have not 
had twelve men sitting in the jury-box for several days as 
puppets. 

The great question for this Jury, absorbing all others, is. 
Have the twelve men named in the indictment, or has either 
of them, committed piracy, and thus incurred the penalty of 
death ? It is a very interesting inquiry, gentlemen, — interest- 
ing in its historical, national, judicial, and political aspects, — 
interesting, too, because of the character and description of the 
accused. We discover that eight of them are foreigners, who 
have never been naturalized, and do not judicially come under 
the designation of citizens of the United States. Four of them 
are what we call natural-born citizens — two from the State of 
South Carolina, one from North Carolina, and one from Phila- 
delphia. Two of them are in very feeble health ; and I am 
sorry to say, some are not yet of middle age — some quite yoimg, 
including Passalaigue, who has not yet attained his eighteenth 
year. I know my fellow-citizens of New York quite well enough 
to be quite sure that even if there had been any exhibition of 
popular prejudice, or feeling, or fury, with a view to disturb 
their judgments in the jury-box, the sympathy that arises 
properly in every well-constituted heart and mind, in iiavor of 
the accused, their relatives and fiiends, would overcome any 
any such wrong impulse as might be directed to deprive them 
of that fair trial which, up to this point, they have had, and 
which, to the end, I know they will have. 

Are they pirates and robbers ? Have they incurred the 
penalty of death? Gentlemen, it is a little curious, that dur- 
ing the present reign of Victoria, a statute has been passed in 



OF THE SCHOOITER SAVANNAH. 239 

England softening the rigor of the punishment for piracy, and 
subjecting the person found guilty to transportation, instead of 
execution, unless arms have been used in the spoliation, or some 
act done aggravating the offence. I have used the term " pi- 
rate," and the term "robber." There is another which, 
strangely enough, was employed by a Judge of the Vice Admi- 
ralty Court in South Carolina, in 1718, who calls these pirates 
and robbers, as we designate them, " sea thieves ;" and I am 
very glad to find that phrase, because the words robber and 
pirate have fallen into mere terras of opprobrium ; while the 
word " thief" has a significance and force understood by every 
man. You know what you thought a "thief" to be, when a 
boy, and how you despised him ; and you are to look at each 
prisoner mentioned in this indictment, and say, on your con- 
sciences as men, in view of the facts and of the law, as 
expounded by the learned Court, do you consider that the 
word "thief" can be applied to any one of the men whom I 
have the honor to assist in defending? That is the great prac- 
tical question which you are to decide. 

[Here Mr. Brady briefly alluded to the question of juris- 
diction as already discussed fully enougli, and made some ob- 
servations on the Hicks case, which had been referred to. He 
then continued as follows :] 

This indictment charges two kinds of offence: Piracy, as 
that crime existed by the law of nations^ — which law may be 
said to have been incorporated into the jurisprudence of the 
United States, — and Piracy under the ninth section of the Act 
of 1790. Piracy by the law of nations is defined by Wheaton, 
the great American commentator on international law, on page 
18i of his treatise on that subject. " Piracy,''^ says that 
eminent gentleman, who was an ornament to the country which 
gave him birth, and an honor to my profession, ^' Piracy is 
defined hy the text writers, to he the offence of depredating on 
the seas withoot being authorized by" any sovereign state, or 
with Gomm.issions from different sovereigns at war with each 
OTHER." The last part of the definition you need not trouble 
yourselves about as I only read it so as not to quibble the text, 
twill read the passage without the latter part. '■'' Piracy is 
defined to he the offence of depredating on, the seas without be- 
ing authorized by any sovereign state." Other definitions 
will hereafter be suggested. 

This leads me to remark upon certain judicial proceedings 
in Philadelphia against men found on board the Southern 
privateer " Jeffereon Davis," and who were convicted of piracy 
for having seized and sent away as a prize the "Enchantress." 
Now my way of dealing with juries is to act with them while 
in the jury box as if they were out of it. I never imitate that 



240 TRIAL OF THE OFFICERS AND CREW 

bird referred to by tbe gentleman who preceded me — the 
ostrich, which supposes that when he conceals his head his 
whole person is hidden from view. I know, and every gen- 
tleman present knows, that ajrny in the city of Philadelphia has 
convicted the men arrested on the "Jefferson Davis," of piracy. 
We are a nation certainly distinguished for three things — for 
newspapers, politics, and tobacco. I do not know that the 
Americans could present their social individualities by any 
better signs. Everybody reads the papers, and everybody has 
a paper given him to read. The hackman waiting for his fare 
consumes his leisure time perusing the paper. The apple- 
woman at her stall reads the paper. At the breakfast table, 
the dinner table, and the supper table, the paper is daily read. 
I sometimes take my meals at Delmonico's, and have there 
observed a gentleman who, while refreshing himself with a 
hasty meal, takes up the newspaper, places it against the castor, 
and eats, drinks and reads all at the same time. Gentlemen, 
I say that a people so addicted to newspapers must have ascer- 
tained that the men in Philadelphia were convicted ; and how 
the jury could have done otherwise upon the charge of Justices 
Grier and Cadwalader I am incapable of perceiving. I have 
the pleasure of knowing both those eminent Judges. My ac- 
quaintance with Judge Cadwalader is slight, it is true, but of 
sufficient standing to ensure him the greatest respect for his 
learning and character. With Judge Grier the acquaintance 
is of longer duration ; and as he has always extended to me 
in professional occupations before him courtesies which men 
never forget, I cannot but speak of him with affection. I 
have nevertheless something to say about the law laid down 
by those Judges on that case. No question on the merits was 
left to the jury, as I understand the instructions. The jurymen 
were told that tfthey Relieved the testimony^ then the defendants 
were guilty of piracy. Now, as to the aspect of this case in 
view of piracy by the law of nations, the question for the 
jury is, in the first place, Did these defendants.^ in the act of 
capturing the '•''Jose/ph^'' taTce her hy force, or hy putting the 
captain of her in fear, with the intent to steal her ? That is 
the question as presented by the indictment, and in order to 
convict under either of the first five counts, the jury must be 
satisfied, beyond all reasonable doubt, that in attacking the 
" Joseph'''' the defendants were actuated as described in the in- 
dictment, from which I read the allegation that they, "with 
force and arms, piratically, feloniously, and violently, put the 
persons on board in personal fear and danger of their lives, 
and in seizing the vessel did, as aforesaid, seize, rob, steal and 
carry her away." In this the indictment follows the law. Another 
question of fact, in the other aspect of the case, under the ninth 



OF 'I-HE SCHOONER SAVANNAH. 241 

section of the act of 1790, will be, substantially, whether the 
existence of a civil war is shown. That involves inquiry into 
the existence of the Confederate States as a de facto Govern- 
ment or as a dejure Government. 

The aniimis furandi, so often mentioned in this case, means 
nothing but the intent to steal. The existence of that intent 
must be found in the evidence, before these men can be called 
pirates, robbers, or thieves; and whether such intent did or did 
not exist, is a question entirely for you. 

To convict under the ninth section of the Act of 1790, the 
prosecution must prove that the defendants, being at the time 
of such offence citizens of the United States of Ainericay did 
something which by that Act is prohibited. You will bear in 
mind that the Act of 1790, in its ninth section, has no relation 
except to American-born citizens, and as to that part of the 
indictment the eight foreigners charged are entirely relieved 
from responsibility. 

Well, on page 104, 5 Wheaton, in the case of The United 
States vs. Smith , the Jury found a special verdict, which I will 
read to illustrate what is piracy and what is not piracy. 

[Here Mr, Brady commented on the case referred to, say- 
ing, amongst other things, — ] 

According to the evidence in the case of Smith, the de- 
fendants were clearly pirates. They had no commission from 
any Government or Governor, and were mere mutineers, who 
had seized a vessel illegally, and then proceeded to seize others 
without any pretence or show of authority, but with felonious 
intent. For these acts they were justly convicted. 

Now, we say, that this felonious intent as charged against 
these defendants, must be proved. But what say my learned 
friends opposed ? Why (in effect), that it need not be proved 
to a Jury by any evidence, but must be inferred, as a matter 
of law, or by the Jury first, from the presumption that every 
man knows the law ; and these men, in this view, are pirates — 
though they honestly 'believed that there was a valid Govern- 
ment called the Confederate States., and that they had a right 
to act under it — because they ought to have known the law ; 
ought to have known that, although the Confederate States had 
associated for the purpose of forming, yet they had not completed 
a Government; ought to have known that, though Baker had a 
commission signed by Jefferson Davis, the so-called President 
of the Confederate States, under which he was authorized to 
act as a piivateer, yet the law did not recognize the commission. 

There is, indeed, a rule of law, said to be essential to the 
existence of society, that all men must be taken to know the 
16 



242 TRIAJ. OF THE OFFICEKS AND CREW 

law, except, I might add, lawyers and judges, who seldom agree 
upon any piop' sition until they must. 

The whole judicial systeiu is founded upon the theory that 
judges will eir aloiit the law, and thus we have the Courts of 
review to correct judicial mistakes and to establish permanent 
principles. Yet it is true that every man is presumed to know 
the law; and th.e native of Manilla (one of the parties liere 
charged), Loo Foo, or whatever his name may be, who does 
not, probably, understand what he is here for, is presumed to 
know the law as well as one of us. If he did not know it bet- 
ter, considering tlie differences between ns, he might not be 
entitled to rate high as a jurist. One of my brethren read to 
you an extract from a recent German work, which presents a 
different view of this subject as relates to foreign subjects in 
particular cases. I was happy to hear Mk. Mayer on the law 
of this case, more particularly as he declared himself to be a 
foreign-born citizen ; for it is one of the characteristics of this 
Government — a characteristic of our free institutions — that no 
distinction of birth or ci eed is permitted to stand in the way 
of merit, come from what clime it may. 

There is another presumption. Every man is presumed to 
intend the natural consequences of his own acts. Now, what 
are the natural consequences of the acts done by these defend- 
ants? The law on this point is illustrated and applied with 
much effect in homicide cases. Suppose a man iias a slight 
contention with another, and one of the combatants, drawing 
a dagger, aims to inflict a sliuht wound, say upon the hand of 
the other ; but, in the struggle, the weapon enters the heart, 
and the injured party dies. The man is arrested with the 
bloody dagi^er in his hand, the weapon by which death was 
unquestionably occasioned ; and the fact being established that 
he killed the deceased, the law will presume the act to be 
murder, and cast upon the accused the burthen of showing 
that it was something other than murder. I hope, gentlemen, 
to see the day when this doctrine of law will no longer exist. 
I never could understand how the presumption of murder 
could be drawn from an act equally consistent with murder, 
manslaughter, justifiable or excusable homicide, or accident, 
but such is the law, and it mus". be re-pected. 

I say, that neither of the defendants intended, as the ordi- 
nary and natural cnnseqnence of his act, to commit 'piracy or 
robbery^ th' ugh what he did m ght, in law, amount to such an 
offence. He intended to take legal prizes, and no more to rob 
than the man in the case I .-upposed designeil to kill. 

The natural consequences of his acts were, to take the ves- 
sel and send her to a port to be adjudicated upon as a prize. 
Now, 1 state to my learned friends and the Court tiiis proposi- 



OF THE SCHOONER SAVANNAH, 243 

tion — that though a legal pi^esumption as to intent might have 
existed in this case if the prosecution had proved merely the 
forcible taking, yet if, in making ont a case for the Government, 
any fact be elicited which shows that the actual intent was dif- 
ferent from what the law in the absence of such fact would 
imply, the presumption is gone. And when the prosecution 
made their witness detail a conversation which took place be- 
tween Captain Baker and the Captain of the .loseph, with refer- 
ence to the authority of the former to seize the vessel, and 
when you find that Captain Baker asserted a claim of right, 
that overcomes the presumption that he despoiled the Captain 
of the Joseph with an intent to steal. The animus furandi 
must, in this case, depend on something else than presumption. 
I will refer you for more particulars of the law on this point, to 
1 Oreenleaf on Evidence^ sections 13 and 14, and 1 make this 
citation for another purpose. When an act is in itself illegal, 
sometimes, if not in the majority of cases, the law affixes to the 
party the intent to perpetrate a legal ofi'ence. But this is not 
the universal rule. In cases of procuring money or goods un- 
der false pretences, where the intent is the essence of the crime, 
the prosecution must establish the offence, not by proving 
alone the act of receiving, but by showing the act and intent ; 
so both must be proved here. Now, I ask, has the prosecution 
entitled itself to the benefit of any presumption as to intent ? 
What are the facts — the conceded facts ? Baker, and a number 
of persons in Charleston, did openly and notoriously select a 
vessel called the " Savannah," then lying in the stream, and 
fitted her out as a privateer'. Baker, in all of these proceed- 
ings, acted under the authority of a commission signed by Jef- 
ferson Davis, styling and signing himself President of the Con- 
federate States of America. Baker and his companions then 
went forth as privateersmen, and in no other capacity, for the 
purpose of despoiling the commerce of the United States, and 
with the strictest injunction not to meddle with the pi'operty of 
any other country. The instructions were clear and distinct on 
this head, as you know from having heard them read. They 
went to sea, and overhauled the Joseph ; gave chase with the 
American tiag flying — one of the ordinary devices or cheats 
practiced in naval warfare ; a device frequently adopted by 
American naval commanders to whose fame no American dare 
afiix the stightest stigma. On nearing the Joseph, the Savan- 
nah showed the secession fltig, and Baker requested Captain 
Meyer to come on board with his papers. The Captain asked 
by what authority, and received fur answer : " The authority 
of the Confederate States." The Captain then went on board 
with his papers, when Baker, helping him over the side, said ; 
" I am very sorry to take your vessel, but I do so in retaliation 



244 TRIAL OF THE OFFICERS AND OREW 

against the United States, with whom we are at war." Baker 
put a prize crew on board the Joseph, and sent her to George- 
town ; the Captain lie detained there as a prisoner. She was 
then duly submitted for judgment as a prize. These are the 
facts upon which they claim that piracy at common law is es- 
tablished. 

My learned associate, Mr. Larocque, cited a number of 
cases to show that though a man might take property of an- 
other, and appropriate it to bis own use, yet if he did so under 
color of right, under a honafide impression that he had author- 
ity to take the property, he would only be a trespasser; he 
would have to restore it or pay the value of it, but he could 
not be convicted of a crime for its conversion. 

Let me state a case. You own a number of bees. They 
leave your land, where they hived, and come upon mine, and 
take refuoe in the hollow of a tree, where they deposit their 
honey. They are your bees, but you cannot come upon my 
land to take them away ; and though they are in my tree, I can- 
not take the iioney. Such a case is reported in our State adju- 
dications. But, suppose that I did take the bees and appropri- 
ate the honey to my own use: I might be y}iw\\\^\\j indicted 
for larceny, because I took the property of another, but 1 am 
not, consequently, a thief in the eye of the law ; the absence of 
intent to steal would ensure my acquittal. 

That is one illustration. 1 will mention one other, decided 
in the South, relating to a subject on which the South is very 
strict and very jealous. A slave announced to a man his in- 
tention to escape. The man secreted the slave for the purpose 
of aiding his escape and effecting his freedom. He was in- 
dicted for larceny, on the ground that he exercised a control 
over the propeity of the owner against his will. The Court 
held that the object was not to steal, and he could not be con- 
victed. In Wheatori's CnTninal Proceedings^ P^gs 397, this 
language will be found, and it is satisfactory on the point un- 
der discussion. 

"There are cases where taking is no more than a trespass : Where a man 
takes another's goods openly before him, or where, having otherwise than by 
apparent roHbery, possessed himself of them, he avows the fact before he is 
questioned. This is only a trespass." 

Now^ all these principles are familiar and simple, and do not 
require lawyers to exf)Ound them, fwr they appeal to the prac- 
tical sense of mankind. J t is certainly a most lamentable re- 
sult of the wisdom of centuries., to place twelve men together 
and ask them., from fictions or theories to say., on oath, that a 
man is a thief, when every one of them knows that he is not. 
If any man on this Jury thinks the word pirate, robber or thief 
can be truly applied to either of these defendants, I am very 



OF THE SCHOONER SAVANNAH. 245 

Borry, for I think neither of them at all liable to any such 
epithet. 

But, suppose that the intent is to be inferred from the act of 
seizing the Joseph, and the defendants must be convicted, 
unless justified by the commission issued for Captain Baker y 
let us then inquire as to the effect of that commission. We 
say that it protects the defendants against being treated as 
pirates. Whether it does, or not, depends upon the question 
whether the Confederate States have occupied such a relation 
to the United States of America that they might adopt the 
means of retaliation or agression recognized in a state of 
war. 

It is our right and duty, as advocates, to maintain that the 
Confederate Government was so situated ,' and to support the 
proposition by reference to the political and judicial history 
and precedents of the past, stating for these men the principles 
and views which they and their neighbors of the revolting 
States insist upon ; our personal opinions being in no wise called 
for, nor important, nor even proper, to be stated at this time 
and in this place. 

If it can be shown that the Confederate States occupy the 
same position towards the Government of the United States 
that the thirteen revolted Colonies did to Great Britain in the 
war of the Revolution, then these men cannot be convicted of 
piracy. 

I do not ask you to decide that the Southern States had 
the right to leave the Union, or secede, or to revolt — to set on 
foot an insurrection, or to perfect a rebellion. That is not 
the question here. I will place before the Jury such views 
of law and of history as bear upon the case — endeavoring 
not to go over the ground occupied by my associates. I 
will refer you to a small book published here in 1859, entitled, 
" The History of New York from the Earliest Time," a very 
reliable and authentic work. In this book I find a few facts 
to which I will call your attention, one of which may be un- 
pleasant to some of our friends from the New England States, 
for we find that New York, so far as her people were con- 
cerned — exclusive of the authorities — was in physical revolt 
against the parent Government long before our friends in New 
England, some of whom often feel disposed to do just what they 
please, but are not quite willing to allow others the same priv- 
ilege. I will refer to it to show you what was the condition of 
things long before the 4th of July, 1776, and to show that, 
though we now hurl our charges against these men as pirates, — 
who never killed anybody, never tried to kill anybody, — who 
never stole and never tried to steal, — yet the men of New York 
.city who committed, under the name of "Liberty Boys," what 



246 TRIAL OF THE OFFICERS AND CREW 

Enofland thought terrible atrocities, in New York, were never 
touched by justice — not even so heavily as if a feather from 
the pinion of the humming-bird had fallen upon their heads. I 
find ihat, about the year 1765, our people here began to grum- 
ble about the taxes and imposts which Great Britain levied 
upon us. And you know, though the causes of the Eevolu- 
tionary war ai-e set forth with much dignity in the Declaration 
of Independence, the contest originated about taxes. That 
was the great source of disaffection, directing itself more par- 
ticularly to the matter of tea, and which led to the miscella- 
neous party in Boston, at which there were no women present, 
however, and where salt water was used in the decoction. I 
find that the governor of the city had fists, arms, and all the 
means of aggression at his command; but at length, happily for 
us, the Government sent over a young gentleman to rule us 
(Lord Monckford), who, when he did come, appears to have 
been similar in habits to one of the accused, who is described 
as being always idle. The witness for the prosecution explained 
that separate posts and duties were assigned to each of the 
crew of the Savannah ; one fellow, he said, would do nothing. 
But he will be convicted of having done a good deal, if the prose- 
cution prevail. A state of rebellion all this time and afterwards 
existed in this particular part of the world, until the British 
came and made themselves masters of the city. In the course 
of the acts then committed by the citizens, and which the 
British Government called an insurrection, a tumultuous rebel- 
lion and revolution, they offered, or it was said they offered, 
an indignity to an equestrian statue of George III. The Brit- 
ish troops, in retaliation, and being grossly ofi'ended at the 
conduct of Pitt, who had been a devoted friend of the Colo- 
nists, mutilated the statue of him which stood on Wall street. 
The remains of the statue are still with us, and can be seen at 
the corner of West Broadway and Franklin street, where it is 
preserved as a relic of the past — a grim memento of the per- 
fect absurdity of charging millions of people with being all 
pirates, robbers, thieves, and mai'auders. 

When the British took possession of this city, they had at 
one time in. custody five thouscmd 'persons. That was before 
any formal declaration of independence — before the formation 
of a Government de jure or de facto^^iW^ yet did they ever 
charge any of the prisoners with being robbers? Not at all. 
Was this from any kindness or humane spirit? Not at all: for 
they adopted all means in their power to overcome our ancestors. 
The eldest son of the Earl of Chatham resigned his commission, 
because he would not consent to fight against the colonies. 
The Government did not hesitate to send to Germany for 
troops. They could not get sufficient at home. The Irish 



OF THE SCHOONER SAVANNAH. 247 

would not aid fliem in the fight. The British did not even 
liesitate to employ Indians; and wlien, in Parliament, the 
Secretary of State justified himself, saying that they had a per- 
fect right to employ "all thy means God and nature" gave 
them, he was eloquently rehuked. Even, with all this hostility, 
such a thing was never thonglit of as to condemn men, when 
taken prisoners, and hold them outside that protection 
which, according to the law of nation?, should be extended 
to men under such circumstances, even though in revolt against 
the Government. 

In October, 1774, the King, in his Message to Parliament, 
said that a most daring spirit of resistance and disobedience 
to the laws existed in Massachusetts, and was countenanced 
and encouraged in others of his Colonies. 

Now, I want you to keep your minds fairly applied to the 
point, on which the Court will declare itself, as to whether I 
am right in saying, that the day when that Message was sent to 
Parliament the Colonies occupied towards the old Government 
a position similar to that of the Confederate States in their hour 
of revolt to the United States. But we will possibly see that 
the Confederate States occupy a stronger position. 

In the course of the discussion which ensued upon the Mes- 
sage, the famous Wilkes remarked : " Rebellion, indeed, appears 
on the back of a flying enemy, but revolution flames on the 
breastplate of the victorious warrior." 

If an illegal assemblage set itself up in opposition to the 
nnmicipal Government, it is a mere insurrection, though ordi- 
nary officers of the law be incapable of quelling it, and the 
military power has to be called out. That is one thing. Bat 
when a whole State places itself in an attitude of hostility to 
the other States of a Confederacy, assumes a distinct existence, 
and has the power to maintain independence, though only fur a 
time, that is quite a different afi^air. 

We remember how beautifully expressed is that passage of 
the Irish poet, so familiar to all of us, and especially to those 
who, like myself, coming from Irish ancestry, know so well 
what is the name and history of rebellion : 

" Rebellion — foul, dishonoring word, 

Whose wrongful blight so oft hath stained 

The holiest cause that tongue or sword 
• Of mortal ever lost or gained ! 

How many a spirit born to bless 

Has sunk beneath thy withering bane, 

Whom but a day's — an hour's success, 

Had wafted to eternal fame ! " 

A remarkable instance, illustrating the sentiment of this 
passage, is found in the history of that brave man, emerging 



248 TRIAL OF THE 0FFI0EE8 AND CREW 

from obscurity, stepping suddenly forth from the common 
ranks of men, whose name is so generally mentioned with 
reverence and love, and who so lately freed Naples from the 
rule of the tyrant. This brave patriot was driven from his 
native land, after a heroic struggle in Rome. History has 
recorded how he was followed in this exile by a devoted 
wife, who perished because she would not desert her husband; 
and how he came to this country, where he establislied himself 
in business until such time as he saw a speck of hope glimmer 
on the horizon over his lovely and beloved native land. Then 
he went back almost alone. Red-shirted, like a common 
toiling man, he gathered round him a few trusty followers who 
had unlimited confidence in him as a leader, and accomplished 
the revolution which dethroned the son of Bomba, and placed 
Victor Emanuel in his stead. You already know that I speak 
of Garibaldi. And yet, Garibaldi, it seems, should have been 
denounced as a pirate, had the sea been the theatre of his 
failure ; and a robber, had he been unsuccessful upon land ! 

What do you think an eminent man said, in the British Par- 
liament, about the outbreak of our Revolution, and the condi- 
tion of things then existing in America ? " Whenewr oppres- 
sion begins, resistance hecoines lawful and rights Who said 
that? The great associate of Chatham and Burke — Lord Cam- 
den, At that time Franklin was iu Europe, seeking to obtain 
a hearing before a committee of Parliament in respect to the 
grievances of the American people. It was refused. 

The Lords and Commons, in an address to the King, declared 
in express terms, that a " rebellion actually existed in Massa- 
chusetts ;" and yet, in view of all that, no legal prosecution of 
any rebel ever followed. So matters continued till the war ef- 
fectively began, Washington having been appointed Command- 
er-in-chief. Then some Americans were taken by the British 
and detained as prisoners. Of this Washington complained to 
General Gage, then in command of the British army. Gage 
returned answer that he had treated the prisoners only too 
kindly, seeing that they were rebels, and that "their lives, by 
the law of the land, were destined for the cord." Yet not one 
of them so perished. 

In view of these things, even so far as I have now advanced ; 
in view of the sacrifices of the Southern Colonies in the Revo- 
lution ; in view of the great struggle for independence, and the 
great doctrine laid down, that, whenever oppression begins, re- 
sistance becomes lawful and right, — is it possible to forget the 
history of the past, and the great principles which gleamed 
through the darkness and the perils of our early history? Are 
we to assert that the Constitution establishing our Government 
is perfect in all its parts, and stands upon a corner stone equiv- 



OF THE SCHOONER SAVANNAH. ^4^ 

alent to what the globe itself might be supposed to rest on, if 
we did not know it was ever wheeling through space? Is all 
the history of our past, its triumphs and reverses, and the glo- 
rious consummation which crowned the efforts of the people, 
all alike to be thrown aside now, upon the belief that we have 
established a Government so perfect, and a Union so complete, 
that no portion of the States can ever, under any circumstances, 
secede, or revolt, or dispute the authority of the others, without 
danger of being treated as pirates and robbers ? The Declara- 
tion of Independence has never been repudiated, I believe, and 
I suppose I have a right to refer to it as containing the political 
creed of the American people. I do not know how many peo- 
ple in the old world agree with it, and a most eminent lawyer 
of our own country characterized the maxims stated at its com- 
mencement as " glittering generalities." But I believe the 
American people have never withdrawn their approbation from 
the principles and doctrines it declares. Among those we find 
the self-evident truth, that man has an inalienable right to life, 
liberty, and the pursuit of happiness ; that it is to secure these 
rights that Governments are instituted among men, deriving 
their just powers from the consent of the governed ; and that 
whenever any form of Government becomes destructive of those 
ends, it is right and patriotic to alter and abolish it, and to in- 
stitute a new Government, laying its foundations on such prin- 
ciples, and conferring power in such a form, as to them may 
seem most likely to secure their safety and happiness. Is this 
a mockery? Is this a falsehood? Have these ideas been just 
put forward for the first time ? There has been a dispute among 
men as to who should be justly denominated the author of this 
document. The debate may be interesting to the historian ; 
but these principles, though they are embodied in the Consti- 
tution, were not created by it. They have lived in the hearts 
of man since man first trod the earth. I can imagine the time, 
too, when Egypt was in her early glory, and in fancy see one 
of the poor, miserable wretches, deprived of any right of hu- 
manity, harnessed, like a brute beast, to the immense stone 
about being erected in honor of some monarch, whose very 
name was destined to perish. I can imagine the degraded 
slave pausing in his loathsome toil to delight over the idea 
that there might come a time when the meanest of men would 
enjoy natural rights, under a Government of the multitude 
formed to secure them. 

Now, what says Blacksione {\st vol., 212), the great com- 
mentator on the law of England, when speaking of the revolu- 
tion which dethroned James II. : " Whenever a question arises 
between the society at large and any magistrate originally 
vested with powers origitially delegated by that society, it must 



250 TRIAL OF THE OFFICERS AND CREW 

he decided hy the voice of the society itself. There is not upon 
earth any other trihuiial to resort toP 

Prior to the 23d March, 1776, the legislature of Massachu- 
setts authorized the issuing of letters of marque to privateers 
upon the ocean, and when ray learned friend, Mr. Lord, in his 
remarks so clear and convincing, called attention to the law- 
fulness of privateering, my brother Evarts attempted to qual- 
ify it by designating the granting of letters of marque as 
reluctantly tolerated, and as if no such practice as despoiling 
commerce should be permitted even in a state of war. I will 
not again read from Mr. Marcy''s letter, but 1 will say here that 
the position he took gratified the heart of the whole American 
people. He said in substance. If you, England and France, 
have the right to despoil commerce with armed national vessels 
we have a right to adopt such means of protection and re- 
taliation as we possess. We do not propose, if you make war 
upon us, or we find it necessary to make war upon you, that 
we, with a poor, miserable fleet, shall not be at liberty to send 
out privateers, but yield to you, wdio may come with your steel- 
clad vessels and powerful armament to practice upon us any 
amount of devastation. No. We never had a navy strong 
enough to place us in such a position as that with regard to 
foreign powers. Look at it. Do you think that France or 
England has any feeling of friendship towards this country as a 
nation? I do not speak of the people of these countries, but 
of the cabinets and governments. JSTo. Nations are selfish. 
Nearly all the laws of nations are founded on interest. Nations 
conduct their political affairs on that basis. They never re- 
ceive laws from one another — not even against crime. And 
when you want to obtain back from an(.)ther country a man 
who has committed depredations against society, you do it 
only by virtue of a treaty, and from no love or affection to the 
country demanding it. And if this war continues much longer, I, 
for one, entertain the most profound apprehension that both these 
powers, France and England, will combine to break the blockade 
if they do not enter upon more agressive measures. If they for 
a moment find it their interest to do so, they will, and no power, 
moral or physical, can prevent them. I say, then, the right of 
revolution is a right to be exercised, not according to what the 
Government revolted against may think, but according to the 
necessities or the belief of the people revolting. If you be- 
longed to a State which was in any way deprived of its rights, 
the moment that oppression began resistance became a duty. 
A slave does not ask his master when he is to have his freedom, 
but he strikes for it at the proper opportunity. A man threat- 
ened with death at the hands of another, does not stop to ask 
■whether he has a right to slay his assailant in self-defence. If 



OF THE SCHOONER SAVANNAH. 251 

self-preservation is the first law of individuals, so also is it of 
masses and of nations. Therefore, when the American Culonies 
made up their minds to achieve independence, whether their rea- 
sons were sufficient or not, they did not consent to have the ques- 
tion decided by Great Britfiin, but at once decided it for them- 
selves. Very early in our history, in 1778, France recognized 
the American Government. England, as you know, complained, 
and the French Government sent back an answer saying, Yes, 
we have formed a treaty with this new Government ; we have 
recognized it, and you have no right to complain ; for you re- 
remember, England, said France, that during ihe reign of Eliza- 
beth, when the Netherlands revolted against Spain, you, in the 
first place, negotiated secret treaties with the revolutionists, 
and then recognized them ; but, when Spain complained of this, 
you said to Spain — The reasons which justify the Netherlands in 
their revolt entitle them to our support. Was success neces- 
sary? Was the doctrine of our opponents correct, that, though 
people may be in absolute revolt against the parent Govern- 
ment, with an army in the field, and in exclusive possession of 
the territories they occupy, yet tiiey have no riglitto be recog- 
nized by the law of nations, and are not entitled to the human- 
ities that accompany the conditions of a war between foreign 
powers ? Is success necessary ? Why was it not necessary in 
the case of the Colonies when recognized by France? Why 
not necessary in the case of the Netherlands when recognized 
by England ? Neyer has been put forward such a doctrine for 
adjudication since the days of Ogden and Smithy tried in this 
city in 1806. That was a period when we were in profound 
peace with all the world. Our new country was proceeding 
on the march towards that greatness which every one hoped 
would be as perpetual as it was progressive We had invited 
to our shores not only the oppressed of other lands, but all they 
could yield us of genius, eloquence, industry and wisdom. 
Among others who came to assist our progress and adorn our 
history was that eminent lawyer and patriot — that good and 
pure man whose monument stands beside St. Paul's Church, 
on Broadway, and may be considered as pointing its white 
finger to heaven in appeal against the severe doctrines under 
which these prisoners are sought to be punished. I refer to 
Thomas Addis Emmett. 

In 1806, two men. Smith and Ogden, were put upon trial, 
charged with aiding Miranda and the people of Caraccas to 
effect a revolt against the Government of Spain, which, it was 
said, was at peace with the United States. They were indicted 
under a statute of the United States ; and if it had turned 
out on the trial that the United States was certainly in a con- 
dition of peace with Spain, they might have been convicted.. 



252 TRIAL OF THE OFFICERS AND CREW 

However, that was a question of fact left to the Jury. The 
learned Judges, pure and able men, entertained views very 
hostile to the notions of the accused, and were quite as decided 
in those views as his honor Judge Grier in the summary 
disposition be made of the so-called pirates in Philadelphia. 
The trial came on, and, with the names of the Jurors on that 
trial, there are preserved to us the names of Counsel, whose 
career is part of history. Among them were Nathan San- 
ford, PiERPoiNT Edwards, Washington Morton, Cadwallader 
D. Golden, Josiah Ogden Hoffman, Richard Harrison, and 
Mr. Emmett, already named. Well, there was an effort made to 
disparage any such enterprise as Miranda's, and any such aid 
thereto as the accused were charged with giving. The Coun- 
sel endeavored to prove that the intent was a question of law, 
and the fact had nothing to do with it. Colden, in his argu- 
ment, said, " Gentlemen, all guilt is rooted in the mind^ and if 
not to he found there^ does not exist, and whoever will contend 
against the jpTojposition must fight against human nature, 

AUD silence his OWN CONSCIENCE." 

We do not often find an opportunity, gentlemen, to regale 
ourselves with anything that emanated from the mind of Mr. 
Emmett. It is peculiar to the nature of his profession that 
most of what the advocate says passes away almost at the 
moment of its utterance. When Mr. Emmett comes to allude 
to the disfavor sought to be thrown on revolutionary ideas by 
the eminent counsel for the prosecution, he«ays : 

" In particular, I remember, he termed Miranda a fugitive on the face of 
the earth, and characterized the object of the expedition as something auda- 
cious, novel, and dangerous. It has often struck me, gentlemen, as matter 
of curious observation, how speedily new nations, like new made nobility 
and emperors, acquire the cant and jargon of their station. 

" Let me exemplify this observation by remarking, that here within 
the United States, which scarcely thirty years ago were colonies, engaged 
in a bloody struggle, for the purpose of shaking otF their dependence on 
the parent State, the attempt to free a colony from the oppressive yoke of 
its mother country is called ' audacious, novel, and dangerous.' It is true, 
General Miranda's attempt is daring, and, if you will, ' audacious^ but 
wherefore is it novel and dangerous ? 

" Because he, a private individual, unaided by the public succor of any 
state, attempts to liberate South America. Thrasybulus ! expeller of the 
thirty tyrants ! Restorer of Athenian freedom ! Wherefore are you named 
with honor in the records of history ? 

*' Because, while a fugitive and an exile, you collected together a band 
of brave adventurers, who confided in your integrity and talents — because, 
without the acknowledged assistance of any state or nation, with no com- 
mission but what you derived from patriotism, liberty, and justice, you 
marched with your chosen friends and overthrew the tyranny of Sparta 
in the land that gave you birth. Nor are Argos and Thebes censured for 
having afforded you refuge, countenance, and protection. Nor is Ismenias, 
then at the head of the Theban government, accused of having departed 
from the duties of his station because he obeyed the impulse of benevolence 



OF THE SCHOONEK SAVANNAH. 253 

and compassion towards an oppressed people, and gave that private assistance 
which he could not publicly avow." 

Mr. Emmett, remembering the history of his own name, 
and the fate of that brother who perished ignominiously on 
the scaffold for an effort to disenthrall his native land, after 
that outburst of eloquence, indulged in the following exclam- 
ation : 

" In whatever country the contest may be carried on, whoever may be 
the oppressor of the oppressed, may the Almighty Lord of Hosts strengthen 
the right arms of those who fight for the freedom of their native land ! May 
he guide them in their counsels, assist them in their difficulties, comfort them 
in their distress, and give them victory in then: battles !" 

I have thought proper to fortify myself, gentlemen, by 
reference to this man of pure purpose, finished education, and 
thorough knowledge of international law, in what I said to 
you, that the principles which lie at the base of this American 
revolution, call it by what name you please, have been known 
and recognized at least as long as the English language has 
been spoken on the earth, and will be known forever — they 
furnishing certain rules, the benefit of which, I hope and 
trust, imder the providence of God, after the enlightened re- 
marks of the Court, and through your intervention, may be 
extended to our clients. 

Some people in New England take particular offence at ap- 
plying these doctrines to the present state of affairs. Has 
New England ever repudiated them ? Has the South ever 
maintained with more unhesitating declaration, more vigorous 
resolve, more readiness for the deadly encounter, than the 
North, these views which I present ? Gentlemen, when we 
look at history, we must take it as we find it. In the war of 
1812, the New England States, which had taken offence before 
at the embargo of 1809, were found, to a very great extent 
among her people,. in an attitude of direct resistance to the war; 
and they were not afraid to say so. New England said so 
through her individual citizens. She said so in her public 
associations. She said so in the form of conventions and 
solemn resolves. To one of these I will call attention. I do 
this for no other purpose than to present analogies, principles, 
and precedents showing what rights belong to those who op- 
pose the Government, or to a state of civil war, or revolution, — 
that men situated like our clients are not to be treated as 
pirates and robbers. 

I have here a book called "The Union Forever; the 
Southern Rebellion, and the War for the Union." It is an 
excellent compilation, prepared and published under the super- 
intendence of James D. Torrey, of this city. I read from it : 



254 TRIAL OF THE OFFICERS AKD CREW 

"The declaration of war against Great Britain, June, 1812, brought the 
excitement to its climax. A peace party was formed in New England, 
pledged to offer all possible resistance to the war. * * * ij-jje State Legis- 
latures of Massachusetts, Connecticut, Vermont, &c., passed laws forbidding 
the use of their jails by the United States for the confinement of prisoners 
committed by any other than judicial authority, and directing the jailors at 
the end of thirty days to discharge all British officers, prisoners of war, com- 
mitted to them. The President, however, applied to other States of the 
confederacy for the use of their prisons, and thus the difficulty was, in a 
measure, obviated." 

Thus these men set themselves up pretty strongly against 
the Government. It is an act of which I do not approve, 
gentlemen ; but, suppose I sliould say that the men who did 
that were, because their political sentiments differed from mine, 
fools or idiots, l^naves or traitors, what would you think of the 
taste or justice of such an observation? It is the intolerance, 
gentlemen, which abides in the heart of almost every man, 
woman, and child, and the diffusion of it over the land, that 
has led to our present dreadful condition. It is the endeavor 
of one party, or of one set, to set itself up in absolute judg- 
ment over the opinions, rights, persons, liberties and hearts of 
other men. It is that notion which Cromwell expressed when 
he said (I quote from memory alone), "I will interfere with 
no man's liberty of conscience ; but, if you mean by that, sol- 
emnizing a mass, that shall not be permitted so long as there 
is a Parliament in Etigland." I have no doubt that the men 
who did these acts in New England, which we would call un- 
patriotic, were actuated by conscientious motives; and I want 
to claim the same thing for the men who, in the South, are 
doing what is very offensive to you and very offensive to me, 
and the more offensive because 1 honestly and conscientiously 
believe that it is unnecessary and wanton. I know that I differ 
with very eminent men who belonged to the same political 
organization as myself when I make that remark ; but it is 
the lesult of the best judgment that I can form, after a careful 
a>id just review of the circumstances attending the present 
unf rtunate breach in our lelation to each other. And cer- 
tainly, gentlemen, it is in no spirit of anger that we, in this 
sacred temple of justice, should deal with our erring brethren. 
We do not mean to pionounce, through the forma of justice, from 
this jury-box, any anathema or denunciation against our fellow- 
men, Tnerdi/ tor holdmg erroneous opinions. All the dictates of 
every enlightened religion on earth are against any such con- 
duct. 1 t;ike for granted that there is not one of you who has 
not some friend enffasred in the war, on one side or the other. 
1 took up a newspaper the other morning, and discovered that 
two men, with whom I had been in the most intimate relations 
of peroonal Iriendship, were in the same engagement, each 



OF THE SCHOONER SAVANNAH. 255 

commanding as colonel, and fighting against each other. They 
were men whc» had been close friends during a long series of 
years — men whom you and I might well be proud to know — 
each of them a graduate of West Point. One of them is said 
to have been seen* to fall from his saddle, and the fate of the 
other (Colonel Cogswell) is at this moment uncertain. You 
or I, while we remain loyal to our flag and our country — while 
we wish and hope for success to our arms in all the conflicts 
that may occur — may regard with pity men born on the same 
territory, as well educated, as deftly brought up, as generous 
and as high-minded as ourselves, because we consider them 
wrong. But, to look upon them as mere outlaws and outcasts, 
entitled to no protection, sympathy, or courtesy, is something 
which I am perfectly sure this Jury will never do, and which 
no community would feel justified or excusable in doing. 

Now, let me read more to you from this book : 

"On the 18th of October, twelve delegates were elected to confer with 
delegates from the other New England States. Seven delegates were also 
appointed by Connecticut, and four by Rhode Island. New Hampshire 
was represented by two, and Vermont by one. The Convention met at Hart- 
ford, Connecticut, on the 15th of December, 1814. After a session of twenty 
days a report was adopted, which, with a slight stretch of imagination, we 
may suppose to have originated from a kind of en rafport association with 
the South Carolina Convention of 1861. We may quote from the report.''^ 

Listen to this, gentlemen, and say how much right we have 
to stigmatize as novel, unprecedented, base, or wicked, tlie 
notions on which the Southern revolt is, in a certain degree, 
founded : 

"Whenever it shall appear" (says this Report, the result of twenty days' 
labor among calm and cool men of New England) "that the causes are radical 
and permanent, a separation., by equitable arrangement will be preferaMe to 
an alliance hy constraint among nominal friends, but real enemies^ inflamed 
by mutual hatred and jealousy, and inviting, by intestine divisions, contempt 
and aggressions from abroad ; but a severance of the Union by one oi^ more States 
against the will of the rest, and especially in time of war, can be justified 

ONLY BY ACTUAL NECESSITY." 

The report then proceeds to consider the several subjects of 
complaint, the principal of which is the national power over 
the njilitia, claimed by Government. We will not agree, say 
they, that the general Government shall have authority over 
the militia ; we claim that it shall belong to us. The report 
goes on to say : 

"In this whole series of devices and measures for raising men, this 
Convention discerns a total disregard for the Constitution, and a disposi- 
tion to violate its provisions, demanding from the individual States a firm 
and decided opposition. An iron despotism can impose no harder serv- 
ice upon the citizen than to force him from his home and occupation to wage 
offensive war, undertaken to gratify the pride or passions of his master. In 
cases of deliberate, dangerous and palpable infraction of th^ Constitution, 



256 TRIAL OF THE OFFICERS AND CREW 

affecting the sovereignty of a State and the liberties of the people, it is not 
only the right hit the duty of such State to interpose its authority for the 
p7'otection, in the manner best ealeidated to secure that end. When emergen- 
cies occur, which are either beyond the reach of the judicial tribunals or too 
pressing to admit of the delay incident to their forms, States tchich have no 
common umpire must be their own judges and execute their own decisions." 

I think that is pretty strong secession doctrine. I do not 
see that it is possible, in terms, to state it more distinctly. Well, 
it is true that candid people in that section of the country did 
not approve these views, but disapproved them ; and yet they 
were the views, clearly and forcibly expressed, of a large num- 
ber of intelligent and moral people. 

Now, this enables me to repeat, with a clearer view derived 
from history, the proposition that the Confederate States are — 
under the law of nations, and the principles embodied in the 
Declaration of Independence, sustained in the Revolution, and 
recognized by our people— in a condition not distinguishable from 
that of the Colonies in '76, except that, if there be a difference, the 
position of the Confederates, in reference to legality .^ as a judicial 
question.) is more justifiable, as it is certainly more formidable. 
This word " secession" is, after all, only a word ; a word, as Mr. 
Webster said in one of his great speeches, answering Mr. Cal- 
houn, of fearful import ; a word for which he could not according 
to his views, too strongly express condemnation. But whether 
you use the word "secession," or the familiar expression, "going 
out of the Union," or, " not consenting to remain in the Union, 
the idea is one and the same. Much acumen and ingenuity 
have been displayed, even by a mind profound as that of Mr. 
Calhoun — a most acute man and a pure man, as Mr. Webster 
eloquently attested in the Senate chamber, after the decease of 
that South Carolina statesman — I say a good deal of acumen 
has been spent on the question whether a State, or any num- 
ber of States, have a eight under the Constitution to secede 
from the Union. It is a quarrel about phrases. It is not 
necessary in any point of view, political, philological or 
moral, to use the word "secession" as either excusing or justi- 
fying the act of the Confederate States. Suppose 1 grant, as 
a distinct proposition, in accordance with what I admit to be 
the opinion of the great majority of jurists, and orators, and 
statesmen at the North, that there is no right in a State, under 
the Constitution, to recede from the Union — what then? I 
shall not stop to give you the argument with which the South 
presents a view of the question entirely different from that of the 
North. Of what consequence is it, practically, whether the 
right of the State to go out be found in any part of the com- 
pact called the Constitution, or be derived from a source ex- 
trinsic of it? You (let me suppose) are twelve States, and I 



OF THE SCHOONER SAVANNAH. 25Y 

am the thirteenth. There is the original Confederacy of States, 
pure and simple, under the agreement with each other ; and 
there, according to the views of Mr. Webster and the prosecu- 
tion here, we became constituted in a general Government, or, 
as Wheaton says, in a " composite Government," giving great 
power to tlie general center. Now, what difference does it 
make, if you twelve States conclude to leave me, whether you 
do it by virtue of anything contained in the Constitution, or 
inferable from the Constitution, or in virtue of some right 
or claim of right that resides out of the Constitution ? It is 
not of the least consequence. I do not care for the word 
" secession." It would be, at the worst, revolution. In that 
same great speech of Mr. Webster's against Calhoun, in which 
I think I am justified in saying he exhausts the subject and 
makes the most formidable argument against the theory of 
secession that was ever uttered in the United States, all the con- 
clusion he comes to is this : — " ' Peaceable secession !' I cannot 
agree to such a name. I cannot think it possible. It would he 
REVOLUTION." Ycry w^ell. Of what consequence is the designa- 
tion ? Who cares for the baptism or the sponsors ? It is the tiling 
you look to. And if they have either the right or the power to 
secede or revolutionize, they may do it, and there is no tribunal 
on earth to sit in judgment upon them ; though we have the right 
and the power, on the other hand, to battle for the maintenance 
of the whole Union. Our friend, Mr. Justice Grier, says : " No 
hand of conspirators can overcome the Government merely he- 
cause they are dissatisfied with the result of an election.'''' Now, 
gentlemen, with the deference he deserves, I would ask the 
learned Justice Grier, or any other Justice, or my learned friend, 
Mr. Evarts, how he will proceed to dispose of the case which I 
am about to put ? Suppose that all but one of our States meet 
in their Legislatures, and, by the universal acclaim, and with 
the entire approval of all the people, resolve that they will re- 
main no longer in association with the others — what will you do 
with them? That solitary State, which may be Rhode Island, 
says : " I have in me the sovereignty ; I have in me all the at- 
tributes that belong to empire or national existence; but I 
think I will have to let you go. Whether you call it secession, 
or rebellion, or revolution, you may go, because you have the 
power to go., if there be no better reason." And power and 
right become, in reference to this subject, the same thing in the 
end. Do they not ? Is there any relation on earth that has a 
higher sanction than marriage ? So long as two parties, who 
have contracted that holy obligation, have, in truth, no fault 
to find with each other, is there any right in either to go away 
from the other ? There is no such right, either by the law of 
17 



258 TRIAL OF THE OFFICERS AND CREW 

God or of man. But there is a power to do it, is there not? 
And if the wife flee from her husband, instead of towards him, 
or if a husband go from his wife, is there any law of society 
that can compel them to unite? And why not? Because man- 
kind, thcugh they have perpetrated many follies, have, at least, 
recognized that this was a remedy utterly impnssible. In the 
relation of partnersliip between two individuals, does not the 
same state of things exist? and do not the same arguments sug- 
gest themselves? I ask my learned brotlier what he can do in 
reference to the ten States that have claiii]ed to secede from the 
Union, and have organized themselves into a Government? I 
will give liim all the army he demands, and will let him retain 
in the chair of State this honest, pleasant Mr. Lincoln, who is 
not the greatest man in the world — nobody will pretend that — 
but is as good and honest a person as there is in the world. 
There is not the slightest question but that, in all his move- 
ments, he only proposes what he deems consistent with the 
welfare and honur of the country. I will give my learned 
brother the army now on the banks of the Potomac, doing noth- 
ing, and millions of money, and then I desire him to tell us 
how, with all these aids, he can coerce those ten States to re- 
main in the Confederacy. What was said by Mr. Buchanan 
on the subject, in his Message of December last ? '■'- 1 donot 
propose^^^ said he, " to attem/pt any coercion of the States. Ihe- 
lieve that it would he utterly impossible. You cannot compel a 
State to remain in the Union. They may refuse to send Sena- 
tors to the Senate of the United States. They may refuse to 
choose electors, and the Goveryiment stops.^"* Well, I grant you 
that this is not the view of other men quite as eminent as Mr, 
Buchanan. I grant you that the great Chief Justice Marshall — 
a man to whom it would be bad taste to apply any other word 
than great, because that includes everything which character- 
ized him — 1 grant you that brilliant son of Virginia met an 
argument like this with the great power that distinguished all 
his judgments, when a question arose in the Supreme Court of 
the United States, affecting the State of Virginia and a citizen. 
But of what importance is it what any man thinks about it? 
What is your theory as compared with your practice ? Now, 
I will give my iriend all the power he wants, and ask him to 
deal with these ten States. Do you believe it to be within the 
compass of a possibility to compel them to remain in the Union, 
as Statis, if they do not wish it? 

Thus 1 I'cach the conclusion, on even the weakest view of the 
case for us, that the power to secede, and the power to o^'gan- 
ize a Government existing, there is no power on earth which, 
on any rule of law, can interfere with it, except that of war, 
conducted on the principles of civilized war. 



OF THE SCHOONER SAVANNAH, 259 

Now, then, let us look at those (confederate States a little 
more closely. What says Vattel, in the passage leferred to 
by my learned friend, Mr. Larocque, and which it is of the ut- 
most importance, in this connection, to keep in mind? 

[Here Mr. Brndy read an extract, which will be found in 
the argument of Mr. Larocque.*] 

Is not that clearly expressed, and easy to understand ? All 
of us comprehend and can readily apply it in this case. That 
resolves the question, if indeed tliis be the law of tiie land, 
into this : Have the Confederate States^ on any show of reason^ 
or wii/ioui it— for that does not affect the inquiry — attained 
sufficient strength, and become sufficiently fokmidable, to 
entitle them to he treated^ under that law of nations^ as in a con- 
dition of CIVIL WAR, even if they have not constituted a sejparate^ 
sovereign^ and independent nation f Really, it seems to me, too 
clear for doubt, that they have. We had, in the Revolution, 
thirteen Colonies, with a limited treasury, almost destitute of 
means, and with some of our soldiers so behaving themselves, 
in the early part of the struggle, that General Washington, on 
one memorable occasion, threw down his hat on the ground 
and asked, " Are these the men with whom I am to defend the 
liberties of America V And those of you, gentlemen, who have 
read his correspondence, know how constantly he was com- 
plaining to Congress about the inefficiency of the troops, and 
their liability to desertion. I remember that he says some- 
thing like this : " There is no doubt that patriotism may accom- 
plish much. It has already efiected a good deal. But he who 
relies on it as the means of carrying him through a long war 
will find himself, in the end, grievously mistaken. It is not to be 
disguised that the great majority of those who enter the service 
do so with a view to the pay which they are to receive; and, 
unless they are satisfied, desertions may be expected." He 
also remarked, at another period, in regard to the troops of a 
certain portion of our country, which 1 will not name, that they 
would have their own way ; that when their term of enlistment 
expired they would go home ; and that they would sometimes 
go before that period arrived. That, I am mortified to say, has 
been imitated in the present struggle. 

Such was the early condition of the Colonies. 

Now, the Southern Confederacy have ten States — they had 
seven when this conimission was issued — with about eight 
millions of people. They have separate State governments, 
which have exi^ted ever since the Union wasformed, and which 
would exist if this revolution were entirely put down. They 
have excluded us from every part of their territory, except a 

» See pages 105, 106, and 107. 



260 TRIAL OF THE OFFICERS AND CREW 

little foothold in the Eastern part of Virginia, and " debateable 
ground " in Western Yirginia. We have not jet been able to 
penetrate farther into the Confederate States. We cannot send 
even food to the hungry or medicine to the afflicted there. 
We cannot interchange the commonest acts of humanity with 
those of our friends who are shut up in the South. I do think, 
with the conceded fact looking dh-ectly into the face of the 
American people that, with all the millions at the command of 
the Administration, there is yet found sufficient force and power 
in the Confederate States to maintain their territory, their Gov- 
ernment, their legislature, their judiciary, their executive, and 
their army and navy, it is vain and idle to say that they are 
not now in a state of civil war, and that they ought to be ex- 
cluded from the humanities incident to that condition. Such 
an idea should not, I think, find sanction in either the heart, 
the conscience, or intelligence of any right-minded man. 

Not only are the lacts already stated true, but the Confed- 
erate States have been recognized as a belligerent power by 
France and England, as we have proved by the proclama- 
tions placed before you ; and they have been recognized by our 
Government as helligerents^ at least. That I submit, as a dis- 
tinct question offact^ to the Jury, unless the Court conceive that 
it is a pure question of law, — in which case I am perfectly con- 
tent that the Court shall dispose of it. 

And where do I find this ? I find it in the admission of 
Mr. Lincoln, in his Inaugural Address, that there is to be no 
attempt at any physical coercion of these States — a concession 
that it is a thing not called for, not consistent with the views 
of the Administration, or with the general course of policy of 
the American people. According to his view, there was to 
be no war. I find it in the correspondence of General Ander- 
son with Governor Pickens, which has been read in the course 
of the trial — which of course has been communicated to the 
Government, will be found among its archives, and of which 
no disapprobation has been expressed. And here I borrow 
a doctrine from the District Attorney, who said, when I de- 
clared that the legislative branch of the Government had not 
given their declaration as to what was the true condition of the 
South, that their silence indicated what it was ; and so, the 
silence of the Government, in not protesting against this cor- 
respondence, is good enough for my purpose. 

The proclamation of the President, calling for 75,000 troops, 
and then calling for a greater nnmher, would, in any Court in 
Christendom, outside of the United States, be regarded, under 
international law, as conclusive evidence that those troops were 
to be used against a belligerent power. Who ever heard of 
BIGHT millions of people, or of one million of people, being 



OF THE SCHOONER SAVANNAH. 261 

ALL TKAiroRS, and being all liable to proskcution fob treason 
AT once. I find this recognition in the exchange of prisoners, 
which we know, as a matter of history, has occurred. I find 
it in the capitulation at Hatteras, at which, and by which, 
General Butler, of bis own accord, when lie refused the 
terms of surrender proposed by Commodore Barren, declared 
that the garrison should be taken as prisoners of war ; and 
that has been communicated to tlie Government, and no dis- 
satisfaction expressed about it. 

And, gentlemen, I rest it, also, as to the recognition by our 
Government, on the fact to which Mr. Sullivan so appropri- 
ately alluded — the exchange of flags of truce between the two 
contending forces, as proved by one of the officers of the navy, 
A flag of truce sent to rebels — to men engaged in lawless in- 
surrection, in treasonable hostility to the Government, with a 
view to its overthrow ! Why, gentlemen, it is the grandest, as 
it is the most characteristic, device by which humanity protects 
men against atrocities which they might otherwise perpetrate 
upon each other — that little white flag, showing itself like a. 
speck of divine snow on the red and bloody field of battle;, 
coming covered all over with divinity ; coming in the hand of 
peace, who rejoices to see another place where her foot may 
rest ; welcome as the dove which returned to the ark ;• coming, 
I say, in the hand of peace, who is the great conqueror, and 
before whom the power of armies and the bad ambitions and 
great struggles of men must ultimately be extinguished. This, 
of itself, will be regarded by mankind, when they reflect 
wisely, as sufficient to show that our Government must not be 
brutal ; and we seek to rescue the Administration from any 
imputation that it wants to deny to the South the common 
humanities which belong to warfare, by your refusing to let 
men be executed as pirates, or to make a distinction between 
him who wars on the deep and him who wars upon the land. 

It is very strange if the poor fellows who had no means of 
earning a meal of victuals in the city of Charleston, like some 
of those who composed the crew of this vessel, shut up as if 
in a trap, should be hanged as pirates for being on board a 
privateer, under a commission from the Confederate States, 
and that those who have slain your brothers in battle should 
be taken as prisoners of war, carefully provided for, and treated 
with the benevolence which we extend to all prisoners who fall 
into our hands — the same humanities that, as you perceive, 
are provided for in the instructions from Jefferson Davis, found 
on board the privateer, directing that the prisoners taken should 
be dealt with gently and leniently, and to give them the same 
rations as were supplied to persons in the Confederate service. 

But it seems to be suggested in Vattel, and certainly is 



262 TRIAL OF THE OFFICERS AND CREW 

promulgated in the opinion of Mr. Justice Grier, that, although 
the Confederate States have obtained any proportions however 
large, any power however great, there must be some sound 
cause^ some reasonable frdexl^ for this revolt. Well, who is to 
judge of that? We do not, says the Government, admit that 
the cause is sufficient. The United States Government says 
there is none. Now, I propose to show yon what the South says 
on that subject — to lay before you matters of history with which 
you are all acquainted — to show you what is supposed by men 
as able as any of us, as well acquainted with the history of the 
country, and as pure — what is supposed by them to have crea- 
ted this state of things, entitling the Confederate States to 
leave us and be a community by themselves. I will hereafter 
appeal to the late Daniel Webster as a witness that one of the 
•causes assigned by the Southern States for their act is at least 
the expression and proof of a great wrong done them. 

In the first place, a large proportion of our people at the 
North claim the right to abolish slavery in places ceded to the 
United States^ or formed by contributions from the States, such 
■as the District of Columbia. I do not know what my learned 
friends' views on that subject are, but I know that the two 
great political parties of the country have had distinct opinions 
on that subject. By one, it has been steadily maintained, and 
with great energy, that, so far as the nation has power over the 
subject of slavery, it shall exercise it to abolish slavery. And 
the* South says : " If you undertake to abolish slavery in any 
fort, any ceded j^lace, any territory that we have given you for 
the purposes of the National Government, we will regard that 
as a breach of faith ; for, whether you abhor slavery, or only 
pretend to abhor it, it is the means of our life. I, a Soutlierner, 
whose mother was virtuous as yours — whom I loved as you 
loved your mother — received from her at her death, as my in- 
heritance, the slaves whom my father purchased — whom I am 
taught, under my religious belief, to regard as property, and 
whom I will so continue to regard as long as I live." That is 
the argument of the South ; and if men at the South con- 
scientiously believe that, from their knowledge of the senti- 
ments, factions, or agitations at the North, such as these, there 
is an intention to make a raid and foray on the institution of 
slavery, deprive them of all tiie property they have in the 
world, and condemn them to any stigma — is it any wonder that 
they should express and act upon such an opinion ? 

Next, gentlemen, in the category of their complaints, is the 
agitation for the prohibition of what is called the inter-State 
slave trade. Next is the exclusion of slavery from new terri- 
tory, which, says the South, " we helped to acquire by our blood 
and treasure — towards which we contributed as you did. K 



OF THE SCHOONEK SAVANNAH. 263 

you had a gallant regiment in the field in Mexico, had we not 
the Palmetto and other regiments, which came back — such of 
them as survived — covered with glory ?" 

This has been the great su])ject that has recently divided 
our political parties — the Republican party, so-called, proclaim- 
ing with great earnestness and great decency its sincere con- 
viction that it was a moral and political right to prevent slavery 
from being carried into new territory, and insisting that the 
slave-owner, if he went there with his slaves, must bring them 
to a state of freedom. 

There is another party of intelligent and upright men, 
claiming that the South has the same right to go into the Ter- 
ritories with their slaves as the North has to go with their im- 
plements of agriculture ; and these irreconcilable differences 
of opinion are only to be settled at the ])olls, by determining 
the question which shall have sway either in the executive 
councils or in the legislation of the Government. A grand 
subject of debate, for some time, was the endeavor to acquire 
Texas ; and I need not tell you that the great reason why the 
acquisition of Texas was opposed by the Whig party was, that 
they thought it might induce to the extension of slavery. 
When Mr. Choate made his great speech against it in New 
York, he confessed that that was the point, and said : " You 
may be told that this is a new garden of the Hesperides ; but 
do not receive any of its fruits : touch not, taste not, handle 
not, for in the hour that you eat thereof you shall surely die." 

Next, gentlemen, is the nullifioation of the Fugitive-Slave 
Law hy several of the States of New England^ which say: 
" True it is that the Constitution of the United States declares 
that the fugitive shall be delivered up to his master ; true it is 
that Congress has made provision for his restoration ; true it is 
that the Supreme Court of the United States has declared that 
he must be given up ; but we say — we, a sovereign State — that 
if any officer of our Government lends any aid or sanction for 
such purpose he shall be guilty of a crime. If you want any 
slave delivered to his master, you must do it exclusively by 
the authority of the Federal Government, by its power and 
officers." And because, in the city of Boston, Mr. Loring, a 
virtuous citizen, a respectable lawyer, performed, in his official 
cajDacity, an official act toward the restoration of a slave to his 
master, he was removed from his judicial station by the Exe- 
cutive of Massachusetts. 

The District Attorney : (To Mr. Evarts) He was not re- 
: moved for that reason. 

Mr. Brady : The District Attorney says he was not re- 
;moved for that reason. Well, he was removed just about that 



264 TRIAL OF THE OFFICERS AND CREW 

time. (Laughter.) It was a remarkable coincidence ; it was 
like the caution given to the elder Weller, when he was trans- 
ferring a number of voters to the Eatonsville election, not to 
upset them in a certain ditch, and, as he said, by a very ex- 
traordinary coincidence, he got them into that very place. 

But, gentlemen, this is a solemn subject, and is not to be 
dealt with lightly. And here it is that I will refer to the 
great speech of Mr. Webster, in the Senate of the United 
States, on the 7th of March, 1850 — to be found in the fifth vol- 
ume of his works, page 353. Mr. Webster M-as a great man, 
gentlemen, like John Marshall, and he could stand that test of 
a great man — to be looked at closely. Our country produces 
an abundance of so-called great men. The very paving-stones 
are prolific with them. Every village, and hamlet, and blind 
alley has one, at least. And when we catch a foreigner, just 
arrived, we first ask him what he thinks of our country, and 
then, pointing to some person, say, " He is one of the most 
remarkable men in the country;" until, finally, the foreigner 
begins to conclude that we are all remarkable men ; that, like 
children, we are all prodigies until we grow up, when we give 
up the business of being prodigies very soon, as most of us have 
had occasion to illustrate. 

Mr. Webster, I say, was a great man, because he could 
stand the test of being looked at very near, and he grew greater 
all the time. There is no incident in my life of which I cher- 
ish a more pleasant or more vivid recollection than being once 
in a small I'oom, with some other counsel, associated with Mr. 
Webster, about the time he made his last professional efibrt, 
when, in a moment of melancholy, one night about twelve 
o'clock, he came up, and, sitting down on the corner of a very 
old-fashioned bedstead, put his arm around the post, and pro- 
ceeded to enlighten and fascinate us with a familiar, and some- 
times playful, account of his early life ; his first arguments in 
the Supreme Court of the United States ; and the course, in its 
inner developments, of that life which, in its public features, 
has been so interesting to the country, and is to be always so 
interesting to mankind. 

"Mr. President," said he, "in the excited times in which we Hve there 
is found to exist a state of crimination and recrimination between the North 
and South. There are lists of grievances produced by each, and those griev- 
ances, real or supposed, alienate the minds of one portion of the country from 
the other, exasperate the feelings, and subdue the sense of fraternal affec- 
tion, patriotic love, and mutual regard. I shall bestow a little attention, sir, 
upon these various grievances existing on the one side and on the other. I 
begin with complaints of the South. I will not answer further than I have 
the general statements of the honorable Senator from South Carolina, that 
the North has prospered at the expense of the South, in consequence of the 
manner of administering this Government, in the collecting of its revenues, and. 



OF THE SCHOONER SAVANNAH. 265 

SO forth. These are disputed topics, and I have no inclination to enter into 
them. But I will allude to other complaints of the South, and especially to 
one ioMch has, in imj 02)imon, just foundation ; and that is, that there has 
been found at the North, among individuals and among legislators, a disinch- 
nation to perform fully their constitutional duties in regard to the return of 
persons bound to service who have escaped into the Free States. In that 
respect the South, in my judgment, is right, and the North is wrong. Every 
member of any Northern Legislature is bound by oath, like every other offi- 
cer in the country, to support the Constitution of the United States ; and the 
article of the Constitution (Art. iv., sec. 2, siibd. 2) which says to these States 
that they shall deliver up fugitives from service, is as binding in honor and 
conscience as any other article. No man fulfills his duty in any Legislature 
who sets himself to find excuses, evasions, escapes, from this constitutional 
obligation. I have always thought that the Constitution addressed itself to 
the Legislatures of the States, or to the States themselves. It says that 
those persons escaping to other States ' shall be delivered up ;' and I confess 
I have always been of the opinion that it was an injunction upon the States 
themselves. When it is said that a person escaping into another State, and 
coming, therefore, within the jurisdiction of that State, shall be delivered up, 
it seems to me the import of the clause is, that the State itself, in obedience 
to the Constitution, shall cause him to be delivered up. That is my judg- 
ment. I have always entertained that opinion, and I entertain it now. But 
when the subject, some years ago, was before the Supreme Court of the 
United States, the majority of the Judges held that the power to cause fugi- 
tives from service to be delivered up was a power to be exercised under the 
authority of this Government. I do not know, on the whole, that it may not 
have been a fortunate decision. My habit is to respect the result of judicial 
deliberations and the solemnity of judicial decisions. As it now stands, the 
business of seeing that these fugitives are delivered up resides in the power 
of Congress and the national judicature ; and my friend at the head of the 
Judiciary Committee (Mr. Mason) has a bill on the subject now before the 
Senate, which, with some amendments to it, I propose to support, with all 
its provisions, to the fullest extent. And I desire to call the attention of all 
sober-minded men at the North, of all conscientious men, of all men who are 
not carried away by some fanatical idea or some false impression, to their 
constitutional obligations. I put it to all the sober and sound minds at the 
North, as a question of morals and a question of conscience : What right 
have they, in their legislative capacity or any other capacity, to endeavor to 
get around this Constitution, or to embarrass the free exercise of the rights 
secured by the Constitution to the persons whose slaves escape from them ? 
None at all— none at all. Neither in the forum of conscience, nor before the 
face of this Constitution, are they, in my opinion, justified in such an attempt. 
Of course, it is a matter for their consideration. They, probably, in the ex- 
citement of the times, have not stopped to consider of this. They followed 
what seemed to be the current of thought and of motives, as the occasion 
arose ; and they have neglected to investigate fully the real question, and to 
consider their constitutional obligations ; which I am sure, if they did con- 
sider, they would fulfill with alacrity. I repeat, therefore, sir, that here is a 
well-founded ground of complaint against the North, which ought to be re- 
moved ; which it is now in the power of the different departments of this 
Government to remove ; which calls for the enactment of proper laws author- 
izing the judicature of this Government in the several States to do all that 
is necessary for the recapture of fugitive slaves, and for their restoration to 
those who claim them. Wherever I go, and whenever I speak on the sub- 
ject, — and when I speak here I desire to speak to the whole North, — I say 
that the South has been injured in this respect, and has a right to complain; 



266 TRIAL OF THE OFFICERS AND CREW 

and the North has been too careless of what I think the Constitution per- 
emptorily and emphatically enjoins upon her as a duty." 

Now, gentlemen, this may not accord with the sentiments 
of some of jou ; but what right have 3'ou — if you should diflPer 
entirely with Mr. Webster — if you should believe that there is 
a great law of our Maker, a higher law than any created on 
earth, which requires you to refuse obedience to that Fugitive- 
Slave Law, and makes it a high duty to resist its execution — 
what right, I say, have you io force that opinion upon me? 
What right have you to require that I shall yield an allegiance 
to all parts of the Constitution which you approve, while you 
refuse it allegiance whenever you please ? 

They have assigned, as another cause, the notorious fact of 
the estahlishment of what is hnown as " the Underground Hail- 
road,^'' aiding in the escape and running of of slaves, and the 
clandestine removal of property which belongs to the people 
of the South. They assign, as another, the rescue of persons 
claimed as fugitive slaves, as in the case of the Jerry rescue, in 
or near Syracuse. Passing once through that city, I saw a 
placard announcing a grand demonstration to come off in honor 
of that achievement — the forcible rescue of a man from the 
hands of the Government who was claimed under the provisions 
of the Constitution and an act of Congress which the Federal 
Courts had declared to be constitutional ! 

They refer, also, to the Creole case, in which, according to 
the Southern view of the s^ibject, it was virtually and practical- 
ly decided that no protection was to he afforded to slaves, as 
property of Southern men, on the high seas. That is their view 
of it, and it has been expressed by able men with a great deal 
of force. 

They also refer to the John Brown raid, which we have 
not forgotten — to the invasion of Virginia by that man, who 
furnished the negroes with implements of slaughter. With 
the results of that outrage you are all familiar. 

They refer to the general assault on the institution of slavery 
which many men at the North have felt it on their conscience 
to make, including such distinguished orators as Lloyd Garri- 
son, Gerrit Smith, the fascinating and silver-tongued Phillips 
— to whom I have listened with pleasure, much as I detested 
his sentiments — and Theodoke Parker, the greatest of them 
all. ^ 

They refer to the declarations of cultivated men at the 
North, that there were no means to which men might not re- 
sort to extirpate slavery ; and who, when against them were 
cited certain passages of Scripture that were supposed to sanc- 
tion the institution of slavery, fell back on the position that 
our Constitution was an '-'' infidel Constitution^'' and that even 



OF THE SCHOONER SAVANNAH. 267 

the Bible was not to be regarded as any author! tj for such a 
monstrous error as that. 

They refer to the declaration of Mr. Lincoln^ in one of his 
addresses to the public, that Government could not endure half 
slave and half free. 

Bat, gentlemen, it was not strange to the American people 
to know that there was danger of such a secession as has oc- 
curred. Some years ago it would have been esteemed the most 
impossible thing in the world. It has come to happen in your 
time and mine. It has been predicted. I know a very remark- 
able instance in which that prediction was stated so clearly 
that the author of it would seem to have been invested with 
the spirit and power of prophecy. "We cherished the abiding 
hope that this would not occur; but we now see that the causes 
moving toward it were irresistible, and that it has become an 
event of history. 

Now, if these seceded States, on any reasoning, good or bad, 
on sufficient cause, or on a belief that they had sufficient cause, 
■determined that it was not their interest to remain in the Union, 
they only subscribed to those doctrines promulgated by the 
Hartford Convention, and agreed with Blackstone, and with all 
the writers on civil law, that a state of things having happened 
in which they could have no redress, except by their own act, 
what course were they to adopt ? It is not for you or for me to 
say, at this time, whether tliey were right or wrong in their 
opinions or reasons. I ask you, what course were they to adopt ? 
and what has been the argument heretofore ? Why, the argu- 
ment that, when such a collision of interest took place — when 
the States supposed that the General Government was trespass- 
ing on them and usurping powers, making war upon their in- 
stitutions, oppressing them, or failing to accomplish the ends 
for which the Government was established — they should appeal 
to the Supreme Court of the United States as common arbiter, 
and that its decision should be final. My friend, Mr. Larocque, 
has called attention to cases that might happen, of collision be- 
tween executives of States and of the United States, which 
could not possibly be submitted to the decision of the Supreme 
Court of the United States, and I shall not mar his argument 
or his examples by repeating them or saying anything in ad- 
dition. 

But, suppose that the next Congress should pass a law pro- 
viding that the State of New York should pay all the expenses 
of this war for ten years to come, if it last so long ; and that ev- 
ery boy of eighteen years, in the State of New York, should be 
mustered into the service, and coerced to march to Washing- 
ton within ten days ; and that no man in the State of New Fork 
should be permitted to go into another State without permis- 



268 TKIAL OF THE OFFICERS AND CREW 

sion from the Executive ; or should do anything of a similar 
character, — what course would the State of j^ew York have un- 
der such circumstances ? What course, but disobedience to the 
law, or insurrection, or revolution ? Will my learned friends 
say that, in a case like that, you could appeal to the arbitra- 
ment of the Supreme Court of the United States ? Is that so? 
Has the Supreme Court of the United States, under such cir- 
cumstances, any way of redressing this wrong ? But, suppose 
I concede that it has : what said the Republican party in ref- 
erence to that Court ? I instance that party, because it has the 
administration of the General Government. 

I remember distinctly that Mr. Chase, now one of the Cab- 
inet officers, in a public speech, shortly before the Presidential 
election, and Mr. Wade, of Ohio, a Senator of the United 
States — both able men, grave men, honorable men — insisted, 
before the people, that the Supreme Court of the United States 
was a mere organization of a certain number of respectable 
gentlemen, wliose opinions were entirely conclusive, no doubt, 
as between parties litigant, but had no control over the polit- 
ical sentiments, rights, or actions of the people ; that their ad- 
judications would be a rule and a precedent in future cases of 
just the same character; but, beyond that, should have no effi- 
cacy whatever. 

Gentlemen, I will tell you what, in confirmation of these 
views, Mr. Lincoln says. In the Message that has been read 
to you he states exactly the same thing, with the addition that, 
if we were to submit to the Supreme Court of the United States 
to decide for us what is right in our Government, and what prin- 
ciples should be maintained, and what course the Administra- 
tion should adopt, we would be surrenderiog to the Supreme 
Court the political power of the nation, and would become a 
species of serfs and slaves. 

When nullification reared its head within our territory, and 
the people of South Carolina claimed that an Act of the Gen- 
eral Government was an aggression upon them, against which 
they had a right to make physical resistance, if necessary, the 
parties of this country were divided into Whigs and Democrats. 
They were two formidable parties. There had not then grown 
up any of these little schismatic organizations, which are, in 
these latter days, numerous as the eddies on the biggest stream. 
They were not the days for certain clubs of professional politi- 
cians, with very imperfect wardrobes and more imperfect con- 
sciences, who sit in judgment on the qualifications of judicial 
officers, and measure their fitness for office by their capacity to 
pay money to strikers. 

" Now," said that great party claiming to be conservative, 
"South Carolina has no right to resist. If she has suffered any 



OF THE SCHOONER SAVANNMI. 269 

wrong — if the General Government has attempted any aggres- 
sion on her — let her submit the whola matter to the Supreme 
Court of the United States, and let its arbitration be final." 
Yes ; and so the cry continued, till it was supposed that the 
Supreme Court of the United States was said to have decided 
that the owner of slave property might carry it into the Terri- 
tories. Then the note was change(i. Instantly the doctrine 
was reversed, and the Supreme Court was no longer the great, 
solemn, majestic, and omnipotent arbiter to dispose of this 
question. Then that Court tjecame " a convention of very re- 
spectable gentlemen," who took their seats with black robes, 
and who were very competent to decide the right of a contro- 
versy between John Doe and Eichard Roe, but must not lay 
their hands on politics. Why, they talk about the Earl of 
Warwick being a King-maker; but your man who seats him- 
self on the head of a whisky barrel, in a corner grocery store, 
is a greater King-maker than ever Warwick was ; and such a 
man as that, in his prerogatives, is not to be displaced by the 
Supreme Court of the United States ! He may get up a town 
meeting, at which it will be declared that the doctrine laid 
down by the Supreme Court of the United States is all prepos- 
terous and absurd, and that the people are not going to submit 
to that tribunal. 

There is no recognition, therefore, by this Administration, of 
the idea that the Supreme Court of the United States is capa- 
ble of affording any relief in such a case as that which has led 
to the action of the seceded States. And so, that argument 
being out of the way, I ask you, I ask the learned Court, and 
I ask our opponents, whetlier, under the law of nations, as 
expounded, there was any other course left except that which 
the seceding States have adopted, assuming that any action 
whatever was to be taken ? 

Adjourned till Tuesday, 29th October, at 11 o'clock A. M. 



270 TEIAl. OF THE OFFICEKS AND CREW 



SIXTH DAY. 

Tuesday, Oct. 29th, 1861. 

Mr. Brady resumed his address, and said : 

In the same general line of discussion which I adopted yes- 
terday, I will refer you to a sti'iking passage from a distin- 
guished gentleman, and, when I have read the extract, will 
state from whom it emanated : 

"Any people anywhere, being inclined and having the power, have a 
right to rise up and sJialce off the existing Government, and form a new one 
that suits them better. This is a most valuable, a most sacred right — a right 
which, we hope and believe, is to liberate the world. Nor is this right con- 
fined to cases in which the whole people of an existing Government may 
choose to exercise it. Any portion of such people that can, may revolution- 
ize and make their own of so much of the territory as they ihhabit. More 
than this : a majority of any portion of such people may revolutionize — put- 
ting down a minority intermingled with or near about them who may op- 
pose their movements. It is a quality of revolutions not to go by old 

LINES or old laws, BUT TO BREAK UP BOTH AND MAKE NEW ONES." — Appendix 

Con. Globe, 1st Session S5th Congress, p. 94. 

Would you suppose, gentlemen, that it was an ardent South 
Carolina secessionist who declared that any people may revo- 
lutionize and hold mastery of any territory which they occupy ? 
Would you suppose that was from Jefferson Davis, in the Sen- 
ate of tne United States ? No, gentlemen ; it is from Abraham 
Lincoln, the President of the United States, when he was a 
member of Congress, and was delivered on the 12th of January, 
1848. 

Now, gentlemen, I do not think that an intelligent gentle- 
man born in South Carolina, Kentucky, or Yirginia, and 
educated by his parents in a certain political faith, has not as 
much right to adhere to it as he has to the religious faith in 
which he is brought up ; and if he sliould happen so say all 
that is substantially claimed by these seceding States, he would 
be sustained by authority quoted here, and have the express 
sanction of the distinguished and excellent gentleman now at 
the head of this nation. 

Let me now cite to you Wheaton^s International Law, page 
30, in which he says, that " sovereignty is acquired by a State, 
either at the origin of the civil society of which it is composed, 
or when it separates itself from the community of which it 
pieviously formed a part, and on which it was dependent." 
Then he says, that " civil wak between the members of the same 
society is, by the general usages of nations, such a war as en- 



OF THE SCHOONER SAVANNAH. 271 

titles hoth the contending parties to all the rights of war as 
against each other ^ and as against neutral nations.'''' 

This, if your lionors please, seems to me an answer to the 
doctrine put forward in this case, that the Judges are to treat 
this question in reference to the seceding States as it has been 
viewed by the executive and legislative branches of the Gov- 
ernment. If it be true that wlien a state of civil war exists, 
as stated by Wheaton, both the contending parties have all the 
rights of war as against each other, as well as against neutral 
nations, then it follows very clearly that the seceding States, 
as well as our own, have all the rights of war ; and there is no 
such rule as that they must have those rights determined only 
by the executive or legislative branches of the Government, 
or by both. 

And here, gentlemen, let us refer to the matter of block- 
ade, which I take to be the highest evidence of a distinct 
r^^cognition, by the General Government, of a state of war as 
between the United and the Confederate States. 1 see no 
escape from that conclusion. It is true that a learned Judge 
in New England, an eminent and pure man, has determined, 
as we see from the newspapers, that in his judgment it is not a 
blockade which exists, but merely the exercise by the General 
Government of its authority over commerce and territory in a 
state of insurrection — that it is a mere police or municipal 
regulation. Well, gentlemen, that is not the view taken by 
the Judges elsewhere. Certainly it is not adopted in this Dis- 
trict, where prize cases have arisen, instituted by the Govern- 
ment, which calls this a blockade ; and I undertake to say that, 
in the history of the human race, that word, blockade, never was 
applied except in a state of war; and the exercise of that 
power never can occur except in a state of war, because, as the 
writers inform us, blockade is the right of a belligerent affect- 
ing a neutral^ and only allowable in a state of war. Why 
is it that France and England and all the other countries of the 
world do not attempt to send their vessels to any of the ports 
in guard of which we place armed vessels ? 

A word more about piracy : A pirate is an oifender against 
the law of nations. He is called in the Latin, and by the 
jurists, the enemy of the human race. Any nation can lay 
hold of him on the hiiih seas, take him to its country, and 
punish him. Now, if a ship of war — British, French, Russian, 
or of any other nation — should meet with a piratical craft, she 
would capture and condemn it in the courts of her country, 
and the crew would suffer the punishment of pirates. No one 
will dispute that proposition. But if such a ship of war had met 
with tJje privateer Savannah, even in the very act of cap- 
turing the Joseph, would she have captured the Savannah, or 



272 TRIAL OF THE OFFICERS AND CREW 

attempted to arrest her crew as pirates ? If not, does it not 
follow, as a necessary consequence, that the " Savannah " was 
not engaged in piratical business ? and does it not involve a 
palpable absurdity to say, that a vessel on the high seas, cruis- 
ing under a privateer's commission, can be treated as a pirate by 
the power with which it is at war, and yet be declared not a 
pirate by all the other powers of the earth ? This must be so, 
if there is anything in the idea that piracy is an offence against 
the law of nations. 

There is not a case in our books where any man, under a 
commission emanating from any authority or person, was ever 
treated as a pirate, and so condemned, unless the actual intent 
to steal was proved. In the case of Aurey such was the fact, 
as in many other cases which have been cited. And so it seems 
that if the Confederate States were either an actual Government, 
established in virtue of the principles of right to which I have 
referred, or if a Government de facto, as distinguished from 
one having that right, or if these men believed that the com- 
mission emanated from either kind of Government was — lawful- 
ly issued — we claim that it is impossible in law, and would be 
wrong in morals, and unjust in all its conseqences, to hold them 
as pirates, or to treat them otherwise than as prisoners of war. 
And, gentlemen, I am sorry to say, or rather I am glad to say, 
that if they should be acquitted of the crime of piracy, they 
would yet remain as prisoners of war. The worst thing to do 
with them is to hang them. By preserving their lives we have 
just their number to exchange for prisoners taken by the 
enemy. 

You, gentlemen, will do your duty under the law, whatever 
be the consequences. If you have no doubt that these men 
have committed piracy, they should be convicted of piracy. 
No threat of retaliation from any quarter should or will influ- 
ence right-minded men in the disposition to be made of cases 
where they have to give a verdict according to their conscience, 
the evidence, and the law of the land. 

But the fact of retaliation, as a danger that may ensue 
from treating as pirates men engaged in war, is referred to by 
Vattel in his treatise on the laws of nations. It is one of the 
considerations which enjoin on Courts and Governments the 
duty of seeing that, when people are prosecuting civil war, 
they shall enjoy the humanities of war. 

I will now consider this case imder the ninth section of the 
Act of 1790. which is as follows : 

"If any citizen shall commit any piracy or robbery aforesaid, or any act 
of hostility against the United States, or any of the citizens thereof on the 
high seas, under color of any commission from any foi'eign Prince or State, 



OF THE SCHOONER SAVANNAH. 273 

or on pretence of authority from any person, such offender shall, not- 
withstanding the pretence of any such authority, be deemed, adjudged, and 
taken to be a pirate, felon, and robber, and, on being thereof convicted, shall 
suffer death." 

Now, in the first place, we say, as was before urged, that 
statute has no bearing whatever on the case of the eight 
foreigners, and you are to disregard them entirely in passing 
upon all the questions which this Act may raise; and we 
say that it has no bearing on the four Americans before 
you, even if it be a valid Act and applicable to a case of this 
character, because, at the time of the acts charged, they were 
citizens of another Government^ owing it allegiance^ receiving 
its protectio7i, engaged in its service, and hound to perform 
such service. We have been told that allegiance and protec- 
tion are reciprocal. The people of the Southern States would 
be placed in a very extraordinary condition if the arguments 
of my learned opponent are to prevail. Look at the citizens 
of Charleston. Tliere are men in that city who love the Union, 
among whom is Mr. Pettigkew, an able lawyer, a patriot, and 
a man of great virtue, talents, and distinction. If those loyal 
people wanted to leave Charleston and come North, they could 
not do it. If they felt inclined to utter, at this moment, their 
sentiments in favor of reunion of the States, it would be an 
act of folly and danger. They are living in a State, under its 
government and jurisdiction, and bound to perform their duties 
as citizens. Can they refuse ? They may be ordered into the 
service of the government — sent to sea — enlisted as soldiers. 
They cannot refuse to fight. If they do, they make themselves 
amenable to their own Judges. I refer to 1st Hawkins, PI. 
Crown, 87, 89, where it is said : 

" There is a necessity that the realm should have a King, hy whom and in 
ichose name the laws shall he administered ; and the King in possession, leing 
the only person who either doth or can administer those laws, must be the only 
PERSON who has a right to that obedience which is due to him who administers 
those laics ; and since, hy virttie thereof, he secures us tlie safety of our lives, 
liberties, and properties, and all the advantages of Government, he may justly 

CLAIM returns OF DUTY, ALLEGIANCE, AND SUBJECTION." 

And Blackstone is equally explicit (i Blackstone^s Comm., 

"When, therefore, an usurper is in possession, the subject is excused and 
justified in obeying and giving him assistance; otherwise, under an usurpa- 
tion, NO man could BE SAFE, if the lawful Prince had a right to hang him 
for obedience to the power in being, as the usurper would certainly do for 
disobedience." 

Sdlnst. {Coke) 7, is to the same point: 

" The Stat. 11 Henry VII., ch. 1, is declaratory of the law on this subject ; 
and the year books, 4 Mw. IV., 1, 9 Kdw. IV., 1, 2, show that it was always 
the English law. 

Our statute, or rather constitutional definition, of treason , 
18 



274 TRIAL OF THE OFFICERS AND CREW 

is a transcript of the English statute of treason ; and it is hardlj 
necessary to cite 2 Story 071 the Constitution, sec. 1799, to the 
point that our Courts will construe the Constitution as the 
English law is construed by the English Courts. And here we 
observe a marked diflference between a revolt by the subjects 
of a single consolidated Government which is a unit, and 
the action of one or more States in a Confederacy, or of the 
people dwelling within them, when such States resolve, as 
States, to recognize no sovereignty or Government within their 
territory except that established under their own Constitution. 

But I insist upon it that Congress had 710 power to pass this 
9th section of the Act of 1790 ; that the construction put upon 
it by our opponents is entirely unwarranted ; and that it can- 
not be applied to a case like this. Your honors are aware that 
in The case of Smith, 5 Wheaton, Mr. Webster took the ground 
that the law was not constitutional, because it did not define 
piracy otherwise than by referring to the law of nations. The 
authority given to Congress on that subject is to define and 
punish piracy and other offences against the law of nations.. 
"To define and punish piracy" is all of the phrase with which 
I have to deal. Now, you understand, gentlemen, that there 
is no common-law jurisdiction of offences residing in the United 
States Courts. They can punish no crime except by statute. 
Congress had fully defined pii-acy and robbery in the eighth sec- 
tion of the Act of 1790; and, having done so, what power or 
authority was there in Congress to go on and say that some- 
thing else should be called piracy, when the definition of it 
was complete ? Let me refer your honors again to the lan- 
guage of the law, which furnishes a strong argument on this 
subject: " If any citizen shall commit any piracy or robbery 
aforesaid, or any act of hostility against the United States," 
&c. Does not that clearly recognize and admit that piracy has 
been defined? and can it be pretended that Congress, under 
pretence of defining piracy, can provide that a common assault 
and battery on the high sea shall be piracy? Is there no lim- 
itation to that grant? "We claim that its terms are just as 
much a i^estriction as a delegatio7i of power. It defines as clear- 
ly the limits which the Government shall not transcend, as it 
does the area which Congress may occupy. You may " define 
piracy and punish it :" does this mean that you can call anything 
piracy, whether it be so or not? Suppose Congress passed an 
Act providing that, if any man on land should, during a state 
of war, attempt to make reprisals on another, it should be pi- 
racy, punishable with death : would that be a legitimate exer- 
cise of the authority vested in Congiess? We claim that it 
would not, and that it would be a manifest usurpation against 
the true meaning, spirit, and proper effect of the Constitution. 

Again, it has been argued to your honors, and we insist, 



OF THE SCHOONKR SAVANNAH. 275 

that this statute^ if it he operative, only relates to the case of a 
person talcing a commission from a foreign Government or 
State. To say that an act of hostihty committed by authority 
of ^ny person whatever — using the word "person" to mean a 
human being — against another, on the high seas, would be pi- 
racy, and punishable by death, is a monstrous construction of 
this Act; and if I understood brother Evarts, in the course of 
the discussion that took ]ilace between him and myself, he con- 
ceded that the case which I suggested, of throwing a belay- 
ing-pin, by order of the Captain of one vessel, at the Captain of 
another, on the high seas, although a?i act of hostility by one 
citizen against another, under pretence of authority from a per- 
son, would not come within the law; yet this assault would be 
within the very letter of the Act. Read that law just as it is, 
and say, after the words " Prince" and " State" have been 
used, what other term is necessary or apposite. Wliy, no 
other, except as in the case of Aurey, an individual fitting out 
an expedition against a foreign Government, and undertaking 
to grant commissions ; or as in the case of James II., who, 
as shown by Mr. Lord, was an exile in a foreign land, having 
no territory, no Government, and no subjects ; and he was 
treated in the English Act — from which ours is taken — as a 
mere person, not to be denominated King. I do not mean to 
concede that the case of Miranda, who fitted out the expedi- 
tion against Spain, assisted by some of our citizens, and grant- 
ed commissions to privateers, would be a case within the stat- 
ute of 1790 ; but if it would, it will not subserve the purposes 
of the prosecution at all, or be injurious to us. The word 
" person," in this connection, means a person standing in the 
same relation to another as a Prince or a State. Gentlemen, 
that this was never intended to apply between so many States as 
remained in the Union and those that went out, is a proposition 
about which Mr. Lord has been heard, and I see no answer to 
his argument. 

Now, there is a dilemma here. If the gentlemen insist 
that, in the construction I have given, we are right, and that 
Mr. Jefferson Davis or the Confederate States, in the giving of 
this commission or authority, are to be regarded as a power or 
person within my definition, then it is as a foreign power ; in 
which case Capt. Baker is the subject or citizen of that power, 
and not a citizen of the United States, and not within the Act 
of 1790. And if the Confederate States is not a foreign power, 
within the construction and meaning of the Act of 1790, then 
there is no violation of that statute by Capt. Baker, or any 
one associated with him, if it be true, as I contend, that the 
pretence of authority must be of one from a foreign source. 
If they make out that the Confederate States is a foreign 
power, it is because it is a Government in existence ; and if it 



376 TRIAL OF THE OFFICERS AND CREW 

be a Government in existence, then its commission must be 
recognized by the law of nations. 

iNow, I certainly understood, from the opening by the 
learned District Attorney, that the prosecution did not rely 
much on the piracy branch of this case ; they did not abandon 
it; they have never said they would not press a conviction 
upon it. But the-strong effort is made to convict under the 
ninth section of the Act of 1790, saying to you of the Jury, 
" All you have to find is, that Baker and three of his asso- 
ciates were citizens of the United States ; that they were on 
the high seas ; and that, being there, they committed an act of 
hostility against another citizen of the United States, under 
pretence of authority from Jefferson Davis ; and, then, they are 
pirates." I think it would have been a little more magnani- 
mous in the Government not to attempt any scheme of this 
kind. I think, if it be possible to drag these men, manacled, 
within the construction of a statute which exposes their lives 
to danger, it is yet not the right way to deal with them. When 
they were captured they were entitled to be treated either as 
prisoners of war, or as traitors to the Government. Why were 
they not indicted for treason ? 

Now, my learned friend said that this indictment was drawn 
with the utmost possible care and circumspection, when he 
spoke of the averment that this act of the defendants was done 
under pretence of the authority of ^'' one Jefferson Dams.^'' 
Tl}e pleader did not wish to admit, by the, language of the 
indictment, that it was under pretence of any authority from 
any Government or Confederate States. He wanted to regard 
it as the act of a mere individual, who, although he claimed to 
represent so-called States, was, after all, merely a person sign- 
ing a paper on his own account, and for which he was to take 
the exclusive responsibility. 

I will refer your honors to Blackstone^ 4 vol., p. 72, where he 
interprets this statute of 11 mid 12 William III., chap. 4, to re- 
late to acts done under color of a commission from 2^ foreign pow- 
er ; and it was never supposed to have meant anything else. In 
1819, Great Britain passed a law making it a crime for British 
subjects to be connected in any way with the sending out of 
vessels to cruise against a power at peace with England. By 
the 18^A George II., chap. 30, it is made piracy, in time of war, for 
English subjects to commit hostilities of any kind against fellow 
subjects. How did that act become necessary in the legislation 
of England, if the previous law had already provided for the 
same thing ? That, certainly, is a question of some importance 
in this case. We have statutes that punish citizens of the 
United States, under certain circumstances when they are en- 
gaged in privateering ; and there have been trials and convic- 



OF THE 8CH00NEK SAVANNAH. 277 

tions under these statutts, as your honors will find by referring 
to Wharton'' s State Trials' 

We contend, therefore, that the ninth section of the Act of 
1790, as construed by our opponents, would be unconstitutional; 
that it only applies, if valid, to acts done under authority of a 
foreign power or person ; that if Jefferson Davis was, or repre- 
sented, such foreign power, then the defend^ants were subjects 
of that power, not citizens of the United States, and not within 
the Act ; if he were not or did not represent a foreign power, 
the Act does not apply to the case ; and so, in every view of 
the subject, there is no right to convict any of these men under 
this Act. 

I will now cite some authorities on the question of varia?ice 
made by my friend, Mr. Lord, in describing this commission as 
a pretence of authority from one Jefferson Davis. Certainly, 
in law, that commission is the act and authority of the Con- 
federate States. There can be no dispute about that. 

I refer my learned opponents to Whartori's Criminal 
Treatise, at jpjps. 78, 91, 93, 94 and 96, for these two proposi- 
tions : In tlie first place, that, where a new offence is created 
by statute, the utmost particularity is required, when drawing 
the indictment, to set forth all the statutory elements of the 
offence ; and, in the second place, what is thus averred must 
be proved strictly as laid. Well, it may seem to yoii, gentle- 
men, rather a technical and immaterial question, whether this 
was set out as a pretence of authority from one Jefferson Davis, 
or from the Confederate States, — and it is. But, nevertheless, 
it is a legal technicality ; and these prisoners, if it be well 
founded, have aright to the benefit of it. It is very little that 
I have to read from this book, for the propositions are pointedly 
stated : 

Page 91. " It is a general rule that, in regard to offences created by stat- 
utes, it is necessary that the defendant be brought within all the material 
words of the statute ; and nothing can be taken by intendment." 

Page 93. " Defects in the description of a statutory offence will not be 
aided by a verdict, nor will the conclusion contra formam statutis cure it." 

Page 94. " An indictment under the Stat. 5th Elizabeth, which makes it 
high treason to clip round or file any of the coin of the realm for wicked 
lucre or gain sake, — it was necessary to charge the offence as being committed 
for wicked lucre or gain sake, otherwise the indictment was bad. In another 
case, an indictment on that part of the black act which made it felony will- 
fully or maliciously to shoot at a person in a dwelling-house was held to be 
bad, because it charged the offence to have been done ' unlawfully and mali- 
ciously,^ without the word '■ icillfully .'' " 

That is technical enough, I admit, but it emanates from high 
authority. 

[Mr. Brady read other passages from Wharton, and said] : 

And, now, what relates more particularly to the matter in 
hand, is the case oiThe United States yQ. Hardiman, i^ Peters y 



278 TRIAL OF THE OFFICERS AND CREW 

I 

176. In that case the defendant was indicted for receiving a 
fifty-dollar treasury note, knowing it to have been stolen out 
of the mail of the United States. The indictment was under 
the 45th section of the Post-Office Law. The thing stolen was 
described as a fifty-dollar treasury note, hearing interest at one 
per cent. ; and it turned out to be a treasury note which, al- 
though of fifty-dollars' denomination, bore interest at the rate 
oi one mill 'per cent. ; and the Court held the variance to be 
fatal. Now, we claim that to describe the commission as 
emanating from one Jefferson Davis, w^hen in fact it emanated 
from the Confederate States, is such a variance as is here re- 
ferred to ; and, on that ground, the indictment is not sustained. 

The argument is made here, that, no matter what publicists 
may say, — no matter what Courts of other countries may de- 
clare as international law, about the organization of govern- 
ment or the creation of powers dejure or de facto, — this Court 
has nothing to do with the debate ; that your honors have sim- 
ply to inquire whether Mr. Lincoln, the President, has said, or 
whether Congress has said, a certain thing, and the matter 
proceeds no further ; that the citizen is not entitled to have a 
trial, in a Court of Justice, on the question whether, being in a 
state of revolt, a civil war does in fact exist ; and that the 
right of trial by Jury does not, as to such a question, exist at all. 

It is utterly absurd to have you here, gentlemen, if all 
that is necessary to be shown against these men is the proc- 
lamation by the Executive, and an Act of Congress calling 
them rebels and pirates. Is there any trial by Jury under such 
circumstances ? The form of it may exist, but not the sub- 
stance. It is a mockery. ]^o, your honors ; this question, as to 
the status of the Confederate States, is a judicial question, 
when it arises in a Court of Justice. It is a juridical question. 
It is one of which Courts may take cognizance — must take cog- 
nizance — in view of and with the aid of that international law 
which is part of the common law, part of the birthright of all 
our citizens, and to the benefit and immunities as well as 
responsibilities of which they are subject and may make claim. 

Otherwise it would lead to this most extraordinary conse- 
quence, that, wdienever any portion of a State or any State of a 
Confederacy, either here or elsewhere, revolts, and attempts to 
withdraw itself from the old Government, the old Government 
shall be the only judge on earth to determine whether the 
seceders, or the revolutionists, or the rebels, shall be treated as 
pirates or robbers. 

Would it not be very strange if our nation should extend 
to those who revolt in any other country, when they have at- 
tained a certain formidable position before the world, the rights 
and humanities of civil war ; and that, when any of our own 
people, under the claim of right and justice, however ill-found- 



OF THE SCHOONER SAVANNAH. 279 

ed, unfortunate, or otherwise, put themselves in an attitude of 
hostility to the Government, they are to be treated as outlaws 
and enemies to the human race, having no rights whatever 
incident to humanity and growing out of benign jurisprudence ? 
Then, apart from all that has been said, if the United States 
made war xijpon the /South, as it certainly did hy the act of the 
President, it is one of the 2)ropositions which these men may 
insist u])mi, that the States had a right to defend themselves, to 
make reprisals, to issue letters of marque, and that they had all the 
other rights of warfare. On this point, Mr. Larocque has given 
copious and apposite arguments and citations. The Constitu- 
tion itself, when it comes to prohibit a State from making war 
and granting letters of marque, distinctly recognizes that pri- 
vateers are not illegal. It has limited the prohibition against 
granting letters of marque, &c., by saying that a State may do 
so in the case of invasion, and when the danger is imminent. 

ISTow, -what are the facts before us here which raise this as 
a question in the case ? There was no declaration of war by 
our Government, and none by the South ; but at a certain time 
there was a firing on an unarmed vessel entering Charleston 
harbor — the " Star of the West." General Anderson, who was 
in command of Fort Sumter — whether acting under the author- 
ity of the Government, or not, does not very clearly appear 
in the case — sent a communication to Governor Pickens, to 
the effect that, if unarmed vessels were to be fired upon, he 
wished to be informed of the fact, saying, " You have not yet 
declared war against the United States ;" and that, if the 
ofience were repeated, he should open his batteries on Charles- 
ton. 

That is the substance of it. Mr. Pickens retorted, saying, 
substantially, that they would maintain their positions. _ The 
next thing in order is the proclamation by the President, 
for the organization of the army, for the purpose, as he said, of 
retaking our forts. When, therefore, that condition of things 
had arrived, ^var was begun by the United States upon the 
South. 

You may say it was not a war. You may say it was the 
employment of means to put down an insurrection. I care not 
for the mere use of language. It was, in effect and substance, 
a war against those States which claimed the authority to hold 
territory for themselves, under a separate and independent Gov- 
ernment ; and that would give them the right to oppose force 
by force, unless, indeed, the whole thing was a tumultuous 
act — a mere act of treason — and so to be regarded in all aspects 
of the case. 

There is a principle applicable to this whole case, referred 
to by Mk. Dukes, in his argument — the doctrine of respondeat 



280 TKIAL OF THE OFFICERS AND CREW 

superior^ of which he gave some instances. Tliese men may- 
go wholly free by the law of nations, and yet the State which, 
in the name of Jefferson Davis or the Confederate States, issued 
this commission, would be responsible to the General Govern- 
ment for the consequences. We had a memorable instance of 
this in this State, some years since. You will remember that a 
man, named McLeod, was charged with coming across the lines 
from Canada and setting fire to an American steamer. He was 
tried, and acquitted on the ground — not very complimentary to 
him — that he did not do any snch thing, although he had boast- 
ed of it. It was rather humiliating to be absolved of crime on 
the ground that the accused was a liar; yet still that is the his- 
tory of the case. Now, there was a diplomatic correspondence 
in reference to this incident, as some of you well remember. 
Great Britain insisted that Mr, McLeod must not be tried at 
all ; that the American Government had no authority to take 
cognizance of the act ; and that we must look to Great Britain 
for redress. Well, gentlemen, I am sorry to say that our Gov- 
ernment has very often acted like the Government of England. 
Each of us has been quite willing, occasionally, to swoop down 
on an inferior power, as the vulture on its prey ; but, whenever 
there was a possibility of conflict with a power equal to either, 
a great deal of caution and reserve has been evinced. We have 
been for years — almost from the foundation of our Govern- 
ment — truckling to British ideas, British principles, British feel- 
ings, and British apprehensions, in a manner which has not 
done us any honor ; and we see to-day what reward we are en- 
joying for it. There has not been a public speaker in England 
who has ever designated us, for a long period, by any other 
name than that of the Anglo-Saxon race — a designation which 
includes but one element of even the race which exists in the 
British Islands, omitting the gentle, noble, and effective traits 
imported into it by the Normans, and excluding those country- 
men of my ancestors who do not like to be outside when there 
is anything good going on within. What said our Government 
to that? I understand that they distinctly admitted that McLeod 
was not amenable to our jurisdiction ; but the State of New 
York held on, in virtue of its jurisdiction and sovereignty, and 
Mr. McLeod had to be tried, and was tried and acquitted. 
There the principle or respondeat sujperior was acknowledged 
by our Government ; and I believe that is the policy upon 
which it has acted on every occasion when the case arose. 

Gentlemen, I will detain you but a few moments longer. I 
have endeavored to show, in the first place, that these men 
cannot be convicted of piracy, because they had not the intent 
to steal, essential to the commission of that offence, and that 
you are the judges whether that intent did or did not exist. 



OF THE SCHOONER SAVANNAH. 281 

If it did not, then the accused men are entitled to acquittal 
on that ground. If the Act of 1790 be constitutional, and 
if it can be construed to extend to a case like this, then eight 
of the prisoners are to be discharged — being foreigners, not 
naturalized ; and the other four, also — having acted under a 
commission issued in good faith by a Government which 
claimed to have existence, acted upon in good faith by them- 
selves, and with the belief that they were not committing any 
lawless act of aggression. In this connection I hold it to be 
immaterial whether the Confederate Government was one of 
right, established on sufficient authority according to the law 
of nations, and to be recognized as such, or whether it was 
merely a Government in fact. We claim, beyond all that, and 
apart from the question of Government in law or Government 
in fact, that there exists a state of civil war ; which entitles 
these defendants to be treated in every other manner than as 
pirates ; which may have rendered them amenable to the dan- 
ger of being regarded as prisoners of war, but which has made 
it impossible for them to be ever dealt with as felons. I am 
sorry that it has become necessary in this discussion to open 
subjects for debate, any inquiry about which, at this particular 
juncture in our history, is not likely to be attended with any 
great advantage. But, like my brethren for the defence, I 
have endeavored to state freely, fearlessly, frankly and correct- 
ly, the positions on which the defendants have a right to rely 
before the Court and before you. It would have been much 
more acceptable to my feelings, as a citizen , if we had been 
spared the performance of any such duty. But, gentlemen, it 
is not our fault. The advocate is of very little use in the days 
of prosperity and peace, in the periods of repose, in protect- 
ing your property, or aiding you to recover your rights of 
a civil nature. It is only when public opinion, or the strong 
power of Government, the formidable array of influence, the 
force of a nation, or the fury of a multitude, is directed against 
you, that the advocate is of any use. Many years ago, while 
we were yet Colonies of Great Britain, there occurred on this 
island wliat is known as the famous negro insurrection, — the 
result of an idle story, told by a worthless person, and yet 
leading to such an inflammation of the public mind that all 
the lawyers who then practiced at the bar of New York (and 
it is the greatest stigma on our profession of which the world 
can furnish an example) refused to defend the accused parties. 
One of them was a poor priest, of, I believe, foreign origin. 
The consequence was, that numerous convictions took place, and 
a great many executions. And yet all mankind is perfectly 
satisfied that there never was a more unfounded rumor — never 
a more idle tale — and that judicial murders were never perpe- 



282 TKIAL OF THE OFFICERS AND CKEW 

trated on the face of the earth more intolerable, more inexcus- 
able, more without palliation. How different was it in Boston, 
at the time of what was called the massacre of Massachusetts 
subjects by British forces ! The soldiers, on being indicted, 
sought for counsel ; and thej found two men, of great emi- 
nence in the profession, to act for them. One of them was 
Mr. Adams, and the other Mr. Quincy. The father of Mr. 
Quincy addressed a letter, imploring him, on his allegiance as 
a son, and from affection and duty toward him, not to under- 
take the defence of these men. The son wrote back a response, 
recognizing, as he truly felt, all the filial affection which he 
owed to that honored parent, but, at tlie same time, taking the 
high and appropriate ground that he must discharge his duty 
as an advocate, according to the rules of his profession and the 
obligation of his official oath, whatever might be the result of 
his course. 

The struggles, in the history of the world, to have, in crimi- 
nal trials, an honest judiciary, a fearless jury, and a faithful 
advocate, disclose a great deal of wrong and suffering inflicted 
on advocates silenced by force, trembling at the bar where 
they ought to be utterly immovable in the discharge of 
their duty — on juries fined, and imprisoned, and kept lying 
in dungeons for years, because they dared, in State prosecu- 
tions, to find verdicts against the direction of the Court. The 
provisions of our own Constitution, which secure to men trial 
by jury and all the rights incident to that sacred and invalu- 
able privilege, are the history of wrong against which those 
provisions are intended to guard in the future. This trial, gen- 
tlemen, furnishes a brilliant illustration of the beneficial results 
of all this care. Nothing could be fairer than the trial which 
these prisoners have had; nothing more admirable than the 
attention which you have given to every proceeding in this 
case. I know all the gentlemen on that Jury well enough to 
be perfectly certain that whatever verdict they render will be 
given without fear or favor, on the law of the land, as they 
shall bo informed it does exist, on a calm and patient review of 
the testimony, with a due sympathy for the accused, and yet 
with a proper respect for the Government, so that the law shall 
be satisfied and individual right protected. But, gentlemen, I 
do believe most sincerely that, unless we have deceived our- 
selves in regard to the law of the land, I have a right to invoke 
your protection for these men. The bodily presence, if it could 
be secured, of those who have been here in spirit by their lan- 
guage, attending on this debate and hovering about these men 
to furnish them protection — Lee, and Hamilton, and Adams, 
and Washington, and Jefferson, all whose spirits enter into the 
principles for which we contend — would plead in their behalf. 



OF THE SCHOONER SAVANNAH. 283 

I do wish that it were within the power of men, invoking the 
great Knler of the Universe, to bid these doors open and to let 
the Revolutionary Sages to whom I have referred, and a Sum- 
ter, a Moultrie, a Marion, a Greene, a Putnam, and the other 
distinguished men who fought for our privileges and rights in 
the days of old, march in here and look at this trial. There is 
not a man of them who would not say to you that you should 
remember, in regard to each of these prisoners, as if you were 
his father, the history of Abraham when he went to sacrifice 
his son Isaac on the mount — the spirit of American liberty, 
the principles of American jurisprudence, and the dictates of 
humanity, constituting themselves another Angel of the Lord, 
and saying to you, when the immolation was threatened, 
" Lay not your hand upon him." (Manifestations of applause 
in Court.) 



ARGUMENT OF WILLIAM M. EYARTS, ESQ., FOR 
THE PROSECUTION. 

May itiilease your Honors, and Gentlemen of the Jury : 

A trial in a Court of Justice is a trial of many things besides 
the prisoners at the bar. It is a trial of the strength of the laws, 
of the power of the Government, of the duty of the citizen, of 
the fidelity to conscience and the intelligence of the Jury. It is 
a trial of those great principles of faith, of duty, of law, of civil 
society, that distinguish the condition of civilization from that 
of barbarism. I know no better instance of the distinction be- 
tween a civilized, instructed, Christian people, and a rude and 
barbarous nation, than that which is shown in the assertions of 
right where might and violence and the rage of passion in 
physical contest determine everything, and this last sober, dis- 
creet, patient, intelligent, authorized, faithful, scrupulous, con- 
scientious investigation, under the lights of all that intelligence 
with which God has favored any of us ; under that instruction 
which belongs to the learned and accredited expounders of the 
law of an established free Government ; under the aid of, and 
yet not misled by, the genius or eloquence of advocates on either 
side. 

But, after all, the controlling dominion of duty to the men 
before you in the persons of ttie prisoners, to the whole com- 
munity around you, and to the great nation for which you now 
discharge here a vital function for its permanence and its safe- 



284 TRIAL OF THE OFFICERS AND CREW 

ty, — your duty to the laws and the Government of your coun- 
try (which, giving its protection, requires your allegiance, and 
finds its last and final resting-place, both here and in England, in 
the verdicts of Juries), — your duty to yourselves, — requires you 
to recognize yourselves not only as members of civil society, 
but as children of the " Father of an Infinite Majesty," and 
amenable to His last judgment for your acts. Can any of us, 
then, fail to feel, even more fully than we can express, that 
sympathies, aff'ections, passions, sentiments, prejudices, hopes, 
fears, feelings and responsibilities of others than ourselves are 
banished at once and forever, as we enter the threshold of such 
an inquiry as this, and never return to us until we have passed 
from this sacred precinct, and, with our hands on our breasts 
and our eyes on the ground, can humbly hope that we have done 
our duty and our whole duty ? 

Something was said to you, gentlemen of the Juiy, of 
the unwonted circumstances of the prosecution, by the learned 
counsel who, many days ago, and with an impressiveness that 
has not yet passed away from your memory, opened on behalf 
of the prisoners the course of this defence. 

He has said to you that the number of those whose fate, for 
life or for death, hangs on your verdict, is equal to your own — 
hinting a ready suggestion that that divided responsibility by 
which twelve men may sometimes shelter themselves, in weigh- 
ing in the balance the life of a single man, is not yours. Gen- 
tlemen, let us understand how much of force and effect there 
is in the suggestion, and how truly and to what extent the 
responsibility of a Jury may be said to include this issue of 
life and death. In the first place, as Jurymen, you have no 
share or responsibility in the wisdom or the justice of those 
laws which you are called upon to administer. If there be 
defects in them — if they have something of that force and 
severity which is necessary for the maintenance of Govern- 
ment and the protection of peace and property, and of life on the 
high seas — you have had no share in their enactment, and have 
no charge, at your hands, of their enforcement. In the next 
place, you have no responsibility of any kind in regard to the 
discretion of the representatives of this Government in tbe 
course which they choose to take, as to whether they will prose- 
cute or leave unprosecuted. You do not, within the limits of 
the inquiry presented to you, dispose of the question, why 
others have not been presented to you; nor may that which 
has been done in a case not before you, serve as a guide for 
the subject submitted to your consideration. So, too, you have 
no responsibility of any kind concerning the course or views 
of the law which this tribunal may give for your guidance. 
The Court does not make the law, but Congress does. The 



OF THE SCHOONER SAVANNAH. 285 

Court declares the law as enacted by the Government, and the 
Jury find the facts— giving every scrutiny, every patient inves- 
tigation, every favor for life, and every reasonable doubt as to 
the facts, to the prisoners. Having disposed of that duty, as 
sober, intelligent and faithful men, graduating your attention 
only by the gravity of the inquiry, you have no further respon- 
sibility. But I need not say to you, gentlemen, that if any 
civilized Government is to have control of the subject of piracy — 
if pirates are to be brought within the jurisdiction of the 
criminal law — the very nature of the crime involves the fact 
that its successful prosecution necessarily requires that consid- 
erable numbers shall be engaged in it. I am quite certain 
that, if my learned friends had found in the circumstances of 
this case nothing which removed it out of the category of the 
heinous crime of private plunder at sea, exposing property and 
life, and breaking up commerce, they would have found 
nothing in the fact that a ship's crew was brought in for trial, 
and that the number of that crew amounted to twelve men, 
that should be pressed to the disturbance of your serene judg- 
ment, in any disposition of the case. Now, gentlemen, let us 
look a little into the nature of the crime, and into the condition 
of the law. 

The penalty of the crime of piracy or robbery at sea stands 
on our statute books heavier than the penalty assigned for a 
similar crime committed on land — which is, in fact, similar, 
so far as concerns its being an act of depredation. It may be 
said, and it is often argued, that, when the guilt of two offences 
is equal, society transcends its right and duty when it draws a 
distinction in its punishments ; and it may be said, as has been 
fully argued to you — at least, by implication, in the course of 
this case — that the whole duty and the whole responsibility of 
civil Governments, in the administration of criminal law and 
the punishment of crime, has to do with retributive vengeance, 
as it were, on the moral guilt of the prisoner. Now, gentle- 
men, I need not say to you, who are experienced at least in the 
common inquiries concerning Governments and their duties, 
that, as a mere naked and separate consideration for punishing 
moral guilt. Government leaves, or should leave, vengeance 
where it belongs — to Ilim who searches the heart and punishes 
according to its secret intents — drawing no distinction between 
the wicked purpose which fully plans, and the final act which 
executes that purpose. The great, the main duty — the great, 
the main right — of civil society, in the exercise of its dominion 
over the liberties, lives, and property of its subjects, is the good 
of the public, in the prevention, the check, the discouragement, 
the suppression of crime. And I am sure that there is scarcely 
one of us who, if guilt, if fault, if vice could be left to the 



286 TRIAL OF THE OFFICERS AND CREW 

punishment of conscience and the responsibility of the last and 
great assize, without prejudice to society, without injury to the 
good of others, without, indeed, being a danger and a destruc- 
tion to all the peace, the happiness, and the safety of commu- 
nities, would not readily lay aside all his share in the vindictive 
punishments of guilty men. But society, framed in the form 
and for the purposes of Government, finds, alas ! that this tri- 
bunal of conscience, and this last and future accountability of 
another world, is inadequate to its protection against wicked- 
ness and crime in this. 

You will find, therefore, in all, even the most enlightened 
and most humane codes of laws, that some necessary attention 
is paid to the predominant interest which society has in pre- 
venting crime. The very great diflSculty of detecting it, the 
circumstances of secrecy, and the chances of escape on the 
part of the criminal, are considerations which enter into the 
distribution of its penalties. You will find, in a highly com- 
mercial community, like that of England, and to some extent 
— although, I am glad to say, with much less severity — in our 
own, which is also a highly commercial community, that 
frauds against property, frauds against trade, frauds in the 
nature of counterfeiting and forgery, and all those peacefuland 
not violent but yet pernicious interferences with the health and 
necessary activity of our every-day life, require the infliction 
of severe penalties for what, when you take up the particular 
elements of the crime, seems to have but little of the force, 
and but little of the depth of a serious moral delinquency. 

The severity of the penalties for passing counterfeit money 
are inflicted upon the poor and ignorant who, in so small a 
matter as a coin of slight value, knowingly and intelligently, 
under even the strongest impulses of poverty, are engaged in 
the offence. Now, therefore, when commercial nations have 
been brought to the consideration of what their enactments on 
the subject of piracy shall be, they have taken into account 
that the very offence itself requires that its commission should 
be outside of the active and efficient protection of civil society 
— that the commission of the crime involves, on the part of the 
criminals, a fixed, deliberate determination and preparation — 
and that the circumstances under which the victims, either in 
respect of their property or of their lives, are exposed to these 
aggressions, are such as to make it a part of the probable 
course of the crime, that the most serious evils and the deep- 
est wounds may be infiicted. Now, when a crime, not con- 
demned in ethics or humanity, and which the positive enact- 
ments of the law have made highly penal, yet contains within 
itself circumstances that appeal very strongly to whatever au- 
thority or magistrate has rightful control of the subject for a 



OF THE SCHOONER SAVAimAH. 287 

special exemption, and special remission, and special concession 
from the penalty of the law, where and npon what principles 
does a wise and just, a humane and benignant Government, dis- 
pose of that question ? I agree that, if crimes which the good of 
society requires to be subjected to harsh penalties, must stand, 
always and irrevocably, upon the mere behest of judicial 
sentence, there would be found an oppression and a cruelty in 
some respects, that a community having a conscientious adher- 
ence to right and humanity would scarcely tolerate. Where, 
then, does it wisely bestow all the responsibility, and give all 
the power that belongs to this adjustment, according to the 
particular circumstances of the moral and personal guilt, which 
must be necessary, and is always conceded ? Why, confessedly, 
to the pardoning power, alluded to on one side or the other — 
though chiefly on the part of the prisoners' counsel — in the 
course of this trial. Now, you will perceive, at once, what the 
difference is between a Court, or a Jury, or a public prosecuting 
officer, yielding to j)articular circumstances of actual or of 
general qualification of a crime charged, — so that the law shall 
be thwarted, and the certainty and directness of judicial trial 
and sentence be made the sport of sympathy, or of casual or 
personal influences, — and placing the pardoning power where 
it shall be governed by the particular circumstances of each 
case, so that its exercise shall have no influence in breaking 
down the authority of law, or in disturbing the certainty, di- 
rectness, and completeness of judicial rules. For, it is the 
very nature of a pardon, — committed to the Chief Magistrate 
of the Federal Union in cases of which this Court has juris- 
diction, and to the Chief Magistrate of every State in the 
Union in cases of which the State tribunals take cognizance, — 
that it is a recognition of the law, and of the sentence of the 
law, and leaves the laws undisturbed, the rules for the guid- 
ance of men unaffected, the power and strength of the Gov- 
ernment uuweakened, the force of the judiciary unparalyzed, 
and yet disposes of each case in a way that is just, or, if not 
just, is humane and clement, where the pardon is exercised. 

Now, gentlemen, I shall say nothing more on the subject 
of pardon. It is a thing with which 1 have nothing to do — 
with which this learned Court has nothing to do — with which 
you, as Jurymen, have nothing to do — beyond the fact that this 
beneficent Government of ours has not omitted from its ar- 
rangement, in the administration of its penal laws, this divine 
attribute of mercy. 

Now, there being the crime of piracy or robbery on the 
high seas, which the interests of society, the protection of 
property and of life, the maintenance of commerce, oblige 
every State and every nation, like ours, to condemn — what are 



288 TRIAL OF THE OFFICERS AND CREW 

the circumstances, what are the acts, that, in view of the law, 
amount to piracy ? You will understand me that, for the pres- 
ent, I entirely exclude from your consideration any of the par- 
ticular circumstances which are supposed to give to the actual 
crime perpetrated a public character, lifting it out of the penal 
law that you administer, and out of the region of private 
crime, into a field of quite different considerations. They are, 
undoubtedly, that the act done shall be with intent of de- 
priving the person who is in possession of property, as its 
owner, or as the representative of that owner, of that property. 
That is what is meant by the Latin phrase, with which you are 
quite as familiar now, at least, as I, anhno furand'i — with the 
intention of despoiling the owner of that which belongs to him. 
And, to make up the crime of robbery on land, in distinction 
from larceny or theft, as we generally call it, (though theft, 
perhaps, includes all the variety of crime by which the prop- 
erty of another is taken against his will,) robbery includes, 
and piracy, being robbery at sea, includes, the idea that it is 
done with the application, or the threat, or the presence of 
force. There must be actual violence, or the presence and ex- 
hibition of power and intent to use violence, which produces 
the surrender and delivery of the property. Such are the 
ingredients of robbery and piracy. And, gentlemen, these two 
ingredients are all; and you must rob one or the other of them 
of this, their poison, or the crime is completely proved, when 
the fact of the spoliation, with these ingredients, shall have 
been proved. The use that the robber or the pirate in- 
tends to make of the property, or the justification which he 
thinks he has by way of retaliation, by way of injury, by way 
of provocation, by way of any other occasion or motive that 
seems justifiable to his own conscience and his own obedience 
to any form whatever of the higher law, has nothing to do with 
the completeness of the crime, unless it come to what has been 
adverted to by the learned counsel, and displayed before you 
in citations from the law-books — to an lionest, however much 
it may be a mistaken and baseless, idea that the property is 
really the prof>erty of the accused robber, of which he is re- 
possessing himself from the party against whom he makes the 
aggression. 

Now, unless, in the case proved of piracy, or robbery on 
land, there be some foundation for the suggestion that the will- 
ful and intentional act of depriving a party of his property 
rests upon a claim of the robber, or the pirate, that it is his 
own property (however baseless may be the claim), you cannot 
avoid, you cannot defeat, the criminality of the act of robbery, 
within the intention of the law, by showing that the robber or 
the pirate had, in the protection of his own conscience, and in 



OF THE SCHOONER SAVANNAH. 



289 



tlie government of his own conduct, certain opinions or views 
that made it right for liim to execute that purpose. Thus, for 
instance, take a case of morals : A certain sect of political 
philosopheib have this proposition as a basis of all their reason- 
ing on the subject of property, — that is, that property, the no- 
tion of separate property in anything, as belonging to anybody, 
is theft ; that the very notion that 1 can own anything, what- 
ever it may be, and exclude other people from the enjoyment 
of it, is a theft made by me, a wrongful appropriation, when 
all the good things in this world, in the intention of Providence, 
were designed for the equal enjoyment of all the human race. 
Well, now, a person possessed' of that notion of political econ- 
omy and of the moral rights and duties of men, might seek to 
avail himself of property owned and enjoyed by another, on 
the theory that the person in possession of it was the original 
thief, and that he was entitled to share it. I need not say to 
you that all these ideas and considerations have nothing what- 
ever to do with the consideration of the moral intent with 
which a person is despoiled of his property. 

Now, with regard to force, I do not understand that my 
learned friends really make any question, seriously, upon the 
general principle of what force is, or upon the facts of this 
case, that this seizure of the Joseph by the Savannah had 
enough of force, — the threat, the presence, and exhibition of 
power, — and of the intent to use it, to make the capture one of 
force, if the other considerations which are relied upon do 
not lift it out of that catalogue of crime. 

It is true that the learned counsel who last addressed you 
seemed to intimate, in some of his remarks, near the close of 
his very able and eloquent and interesting address, that 
there was not any force about it, that the master of the 
Joseph was not threatened, that there was no evidence that 
the cannon was even loaded, and that it never had been fired 
oiF. Well, gentlemen, the very illustration which he used 
of what would be a complete robbery on land, — the aggressor 
possessing a pistol, and asking, in the politest manner, for your 
money, — relieves me from arguing that you must fire either a 
cannon or a pistol, before you have evidence of force. If our 
rights stand on that proposition, that when a pistol is presented 
at our breast, and we surrender our money, we must wait for 
the pistol to be fired before the crime is completed, you will 
see that the terrors of the crime of robbery do not go very far 
towards protecting propertv or person, which is the object 
of it. 

When, gentlemen, the Government, within a statute which, 
in the judgment of the Court, shall be pronounced as being 
lawfully enacted under the Constitution of the United States, has 
19 



290 TRIAL OF THE OFFICERS AND CREW 

completed the proof of the circumstances of the crime charged, 
it is entitled at jonr hands to a conviction of the accused, un- 
less, b}^ proof adduced on his part, he shall so shake the consist- 
ency and completeness of the proof on the part of the Govern- 
ment, or shall introduce such questions of uncertainty and doubt, 
that the facts shall be disturbed in your mind, or unless he shall 
show himself in some predicament of protection or right under 
the law,— (and, by " under the law," I mean, under the law of the 
land where the crime is punishable, and where the trial and 
the sentence are lawfully attributed to be,) — or unless he shall 
introduce some new facts which, conceding the truthfulness 
and the sufficiency of the case made by the Government, shall 
still interpose a protection, in some form, against the applica- 
tion of the penalty of the law. I take it that I need not say 
to you that this protection or qualification of the character of 
the crime must be by the law of the land ; and, whether it 
comes to be the law of the land by its enactment in the stat- 
utes of the United States, or by the adoption and incorporation 
into the law of the land of the principles of the law of nations, 
is a point quite immaterial to you. You are not judges of 
what tbe statutes of the United States are, except so far as their 
interpretation may rightfully become a subject of inquiry by 
the Jury, in the sense of whether the crime is within the in- 
tent of the Act, in the circumstances proved. You are not 
judges of what the law of nations is, in the first place ; nor are 
3'ou judges of how much of the law of nations has been adopted 
or incorporated into the system of our Government and our 
laws, by the authority of its Congress or of its Courts. 

Whether, as I say to you, there is a defence, or protection, 
or qualification of the acts and transactions which, in their 
naked nature, and in their natural construction, are violent 
interferences with the rights of property, against the statute, 
and the protection of property intended by the statute, — 
whether the circumstances do change the liability or responsi- 
bility of tbe criminal, by the introduction of a legal defence 
under the law of nations, or under the -law of the land in any 
other form, is a question undoubtedly for the Court, — leaving 
to you always complete control over tbe questions of fact 
that enter into the subject. So that the suggestion, also dropped 
by my learned friend, at the close of his remarks, that any 
siich arrangement would make the Jury mere puppets, and 
give them nothing to do, finds no place. It would not exclude 
from your consideration any matters of fact which go to make 
up the particular condition of public afiairs or of the public rela- 
tions of the community towards each other, in these collisions 
which disturb the land, provided the Court shall hold and say 
that, on such a state of facts existing, or being believed by you. 



OF THE SOHOONEK SAVANNAH. 291 

there is introduced a legal qualification or protection against 
the crime charged. But, if it should be held that all these facts 
and circumstances, to the extent and with the effect that is 
claimed for them by the learned counsel as matter of fact, yet, 
as matter of law, leave the crime where it originally stood, 
being of their own nature such as the principles of law do not 
permit to be interposed as a protection and a shield, why, 
then you take your law on the subject in the same way as you 
do on every other subject, from the instructions of the learned 
and responsible Bench, whose errors, if committed, can be cor- 
rected ; while your confusion between your province and the 
province of the Court would, both in this case, and in other 
cases, and sometimes to the prejudice of the prisoner, and 
against his life and safety, when prejudices ran that way, con- 
found all distinctions ; and, in deserting your duty, to usurp 
that of another portion of the Court, you would have done 
what you could, not to uphold, but to overthrow the laws of 
your country and the administration of justice according to law, 
upon which the safety of all of us, at all times, in all circum- 
stances, depends. 

Now, gentlemen, let me ask your attention, very briefly, to 
the condition of the proof in this case, from the immediate 
consideration of which we have been very much withdrawn by 
the larger and looser considerations, as I must think them, 
which have occupied most of the attention of the counsel, and 
been made most interesting, undoubtedly, and attractive to 
you. These twelve men now on trial — four of them citizens 
of the United States, and eight of them foreigners by birth 
and not naturalized — formed part of the crew of a vessel, origi- 
nally a pilot-boat, called the Savannah. That crew consisted 
of twenty men, and one of them has given the circumstances 
of the preparation for the voyage, of the embarkation upon 
the vessel, of her weighing anchor from the port of Charleston 
and making her course out to sea without any port of destina- 
tion, and without any other purpose than to make seizures of 
vessels belonging to tbe loyal States of the Union and its citizens. 
He has shown you that all who went on board, all who are here 
on trial, had a complete knowledge of, and gave their ready and 
voluntary assent to and enlistment in this service ; and that the 
service had no trait of compulsion, or of organized employment 
under the authority of Government, in any act or signature of 
any one of the crew, as far as he knew, leaving out, of course, 
what I do not intend to dispute, and what you will not under- 
stand me as disregarding — the effect that may be gained from the 
notorious facts and the documents that attended the enterprise. 
He has shown you that, going to sea with that purpose, without 
any crew list, without any contract of wages, they descried, early 



292 TRIAL OF THE OPFICEKS AKD CREAV 

in the morning after they adventured from the port, and at a 
point abont sixty miles to sea, this bark, and ran down to her ; 
and that, while running down to her, they sailed under the flag 
of the United States, and, hailing the brig, when within hailing 
distance, required the master of it to come on board with his 
papers. Upon the inquiry of the" master, by what authority 
they made that demand on him, the stars and stripes being 
then floating at the masthead of the Savannah, Captain Baker 
informed him that it was in the name and by the authority of 
the Confederate States of America, at the same time hauling 
down the American flag and running up the flag of the Con- 
federacy. Whatever followed after this, gentlemen, except so 
far as to complete the possession of the captured vessel, by 
putting a prize crew on board of it, (so called,) sending it into 
Charleston, and there lodging in jail the seamen or ship's com- 
pany of the Joseph that accompanied it, and procuring a sale 
of the vessel — anything beyond that (and this only to show the 
completeness of the capture, and the maintenance of the design 
to absolutely deprive the owners of the vessel and cargo of 
their property) seems to be quite immaterial. Now, when we 
add to this the testimony of Mr. Meyer, the master of tiie cap- 
tured vessel, who gives the same general view of the circum- 
stances under which his vessel was overhauled and seized by 
the Savannah, as well as the observations and the influences 
which operated upon his mind while the chase was going on, 
we have the completeness of the crime, — not forgetting the 
important yet undisputed circumstances of the ownership of 
the vessel, and of the nature of the voyage in which she was 
engaged. You will observe that this vessel, owned by, and, 
we may suppose, judging fi*om the position of the witnesses 
examined before you, constituting a good part of the property 
of, our fellow-countrymen in the State of Maine, sailed on 
the 28th day of April, from Philadelphia, bound on a voyage 
to Cardenas, in Cuba, with a charter party out and back, 
under wliich she was to bring in a cargo of sugar and molas- 
ses. You will have noticed, comparing this date with some of 
the public transactions given in evidence, that it was after 
both the proclamation of Mr. Davis, inviting hostile aggres- 
sions against the commerce of the United States, on the part of 
whosoever should come to take commissions from him ; and after 
the proclamation of the President of the United States, made 
to the people of the United States and all under its peace and 
protection, that if, under this invitation of Mr. Davis, anybody 
should assume authority to make aggressions, on the high seas, 
upon the private property of American citizens, they should be 
punished as pirates. This vessel, therefore, sailed on her voyage 
under the protection of the laws of the United States, and under 



OF THE SCHOONEK SAVANNAH. 293 

this statement of its Government, that the general laws which 
protected property and seamen on the high seas against the crime 
of piracy were in force, and would be enforced by the Govern- 
ment of the United States, wherever it held power, against any 
aggressions that should assume to be made under the protection 
o± the proclamation of Mr. Davis. While returning, under the 
protection of this flag and of this Government, she meets with 
hostile aggression at the hands of an armed vessel, which has 
nothing to distinguish it from the ordinary condition of piracy, 
except this very predicament provided against by the procla- 
mation of the President, and under the protection of which 
the vessel had sailed, to wit, the supposed authority of Jeffer- 
son Davis ; which should not, and cannot, and will not, as I 
suppose, protect that act from the guilt and the punishment of 
piracy. 

Now, you will have observed, gentlemen, in all this, that 
whatever may be the circumstances or the propositions of law 
connected with this case, that may change or qualify the acts 
and conduct of Mr. Baker, so far as the owners of this vessel 
and the owners of this cargo are concerned, there has been as 
absolute, as complete, as final and as perfect a deprivation of 
their property, as if there had been no commission — no public 
or other considerations that should expose them to having the 
act done with impunity. You will discover, then, that, so far 
as the duty of protection from this Government to its citizens 
and their property — so far as the duty of maintaining its laws 
and enforcing them upon the high seas — is concerned, there is 
nothing pretended — there is nothing, certainly, proved — that 
has excused or can excuse this Government, in its Executive 
Departments, in its Judicial Departments, in the declaration of 
law from the Court, or in the finding of facts by the Jury, 
from its duty towards its citizens and their property. And, 
while you have been led to look at all the qualifying circum- 
stances that should attend your judgment concerning the act 
and the fact on the part of these prisoners, I ask your ready 
assent to the proposition, that you should look at the case of 
these sufferers, the victims of those men, whose property has 
been ventured upon the high seas in reliance on its safety 
against aggression, from whatever source, under the exercise 
of the authority of the Government to repel and to punish such 
<;rimes. 

Before I go into any of the considerations which are to affect 
the relations of these prisoners to this alleged crime, and to this 
trial for such alleged crime, let us see what there are in the pri- 
vate circumstances particular to themselves, and their engage- 
ment in this course of proceeding, that is particularly suited to 



294 TKIAL OF THE OFFICERS AND CREW 

attract your favor or indulgence. Now, these men had not, any 
of them, been imder the least compulsion, or the least personal 
or particular duty of any kind, to engage in this enterprise. 
Who are they ? Four of them are citizens of the United States. 
Mr. Baker is, by birth, a citizen of the State of Pennsylvania; 
two are citizens, by birth, of the State of South Carolina, and 
one of North Carolina. The eight men, foreigners, are, three 
of Irish origin, two of Scotch, one a German, one a native of 
Manilla, in the East Indies, and one of Canton, in China. 
Now, you will observe that no conscription, no enlistment, no 
inducement, no authority of any public kind has been shown, 
or is suggested, as having influenced any of them in this enter- 
prise. My learned friend has thought it was quite absurd to 
impute to this Chinaman and this Manillaman a knowledge of 
our laws. Is it not quite as absurd to throw over them the pro- 
tection of patriotism — the protection of indoctrination in the 
counsels and ethics of Calhoun — to give them the benefit of a 
departure from moral and natural obligations to respect the 
property of others, on the theory that they must surrender their 
own rectitude — their own sense of right — to an overwhelm- 
ing duty to assist a suffering people in gaining their liberty? 
What I have said of them applies equally to these Irishmen, 
this German, and these Scotchmen — as good men, if you please, 
in every respect, as the same kind of men born in this country. 
I draw no such national distinctions ; but I ask what there is, 
in the sober, sensible, practical consideration of the motives and 
purposes with which these men entered into this enterprise to 
despoil the commerce of the United States, and make poor men 
of the owners of that vessel, that should give them immunity 
from the laws of property and the laws of the land, or form any 
part in the struggles of a brave and oppressed people, (as we 
will consider them, for the purpose of the argument), against a 
tyrannical and bloodthirsty Government ? 

No! no! Let their own language indicate the degree and 
the dignity of the superior motives that entered into their adop- 
tion of this enterprise : '' We thought we had a right to do it, 
and we did it." Was there the glow of patriotism — was there 
the self-sacrificing devotion to work in the cause of an oppressed 
people, in this? No ! And the only determination that these 
men knew or looked at, was the lawfulness of the enterprise, in 
respect of the sanctions and punishments of the law. They, 
undoubtedly, had not any purpose or any thought of running 
into a collision with the comprehensive power and the all-pun- 
ishing condemnation of the statutes of the United States, wheth- 
er they knew what the statutes were or not ; but they did take 
advantage of the occasion and opportunity to share tlie profits 



OF THE SCHOONER SAVAUNAH. 295 

of a privateering enterprise against the commerce of the United 
States; and they were unquestionably acquainted, either by 
original inspection or by having a favorable report made to 
them with the fundamental provision in regard to this system of 
privateering, so called. They knew that the entire profits of 
the transaction would be distributed among those who were 
engaged in it. Now, I am not making any particular or spe- 
cial condemnation of these men, (in thus readily, without com- 
pulsion, and without the influence of any superior motives, how- 
ever mistaken, of patriotism,) beyond what the general princi- 
ples of pubhc law, and general opinion, founded on the expe- 
rience of privateering, have shown to be the reckless and 
greedy character of those who enter upon private war, under 
the protection of any, however recent, flag. Every body knows 
it — every body understands it — every body recognizes the fact 
that, if privateers, who go in under the hope of gain, and for 
the purposes of spoliation, are not corrupt and depraved at the 
outset, they expose themselves to influences, and are ready to 
expose themselves to influences, which will make them as 
dangerous, almost, to commerce, and as dangerous to life, as if 
the purpose and the principle of privateering did not distinguish 
them from pirates. And, to show that, in this law of ours, there 
is nothing that is forced in its application to privateers — that 
there is nothing against the principles of humanity or common 
sense in the nation's undertaking to say. We will not recognize 
any of those high moral motives, any of this superior. dignity, 
about privateers ; we understand the whole subject, and we 
know them to be, in substance and eftect, dangerous to the 
rights of peaceful citizens, in their lives and their propert}'', — 
reference need only be had to the action of civilized Govern- 
ments, and to that of our Government as much as any, in un- 
dertaking to brush away these distinctions, wherever it had the 
power — that is my proposition — wherever it had the power 
to do so. And 1 ask your Honors' attention to the provision 
on this subject, in the first treaties which our Government — 
then scarcely having a place among the nations of the earth — 
introduced upon this very question of piracy and privateers. I 
refer to the twenty -first article of the Treaty of Commerce with 
France, concluded on the 6th of February, 1778, on page 24 of 
the eighth volume of the Statutes at Large. This is a com- 
mercial arrangement, entered into by this infant Government, 
before its recognition by the Throne of Great Britain, with its 
ally, the most Christian Monarch of France : 

" No subjects of the Most Christian King shall apply for or take any com- 
mission or letters of marque, for arming any ship or ships to act as privateers 
against the said United States, or any of them, or against the subjects, peo- 
ple or inhabitants of the said United States, or any of them, or against the 
property of any of the inhabitants of any of them, from any Prince or State 



296 TRIAL OF TETE OFFICERS AND CREW 

■with which the said United States shall be at war ; nor shall any citizen, 
subject or inhabitant of the said United States, or any of them, apply for or 
take any commission or letters of marque for arming any ship or ships, to 
act as privateers against the subjects of the Most Christian King, or any of 
them, or the property of any of them, from any Prince or State with which 
the said King shall be at war ; and if any person of either nation shall take 
such commissions or letters of marque, he shall be punished as a pirate." 

I^ow, we have had a great deal of argument here to show 
that, under the law of nations, — under the law that must con- 
trol and regulate the international relations of independent 
powers — it is a gross and violent subversion of the natural, 
inherent principles of justice, and a confusion between crime 
and innocence, to say to men who, under the license of war, 
take commissions from other powers, that they shall be hanged 
as pirates. And yet, in the first convention which we, as 
an infant nation, formed with any civilized power, attending 
in date the Treaty of Alliance which made France our 
friend, our advocate, our helper, in the war of the Revolution, 
his Most Christian Majesty, the King of France, standing 
second to no nation in civilization, signalized this holy alliance 
of friendship in behalf of justice, and humanity, and liberty, 
by engaging that, whatever the law of nations might be, what- 
ever the speciousness of publicists might be, his subjects, amen- 
able to the law, should never set up the pretence of a com- 
mission of privateering against tlie penalties of piracy. Nor 
had this treaty of commerce which I have referred to, any- 
thing of the nature of a temporary or warlike arrangement 
between the parties, pending the contest with Great Britain. 
It was a treaty independent of the Treaty of Alliance which 
engaged them as allies, oflfensive and defensive, in the prose- 
cution of that war. Nor is this an isolated case of the moral- 
ity and policy of this Government on the subject of piracy. 
By reference to the 19th Article of the Treaty between the 
Netherlands and the United States, concluded in 1782, at p. 44 
of the same volume, your honors will find the same provision. 
After the same stipulation, excluding the acceptance of com- 
missions from any power, to the citizens or subjects of the 
contracting parties, there is the same provision : " And if any 
person of either nation shall take such commissions or letters 
of marque, he shall be punished as a pirate." 

Now, our Government has never departed from its purpose 
and its policy, to meliorate the law of nations, so as to extir- 
pate this business of private war on the ocean. It is entirely 
true that, in its subsequent negotiations with the great powers 
of Christendom, it has directed its purpose to the more thor- 
ough and complete subversion and annihilation of the whole 
abominable exception, which is allowed on the high seas, from 
the general melioration of the laws of war, that does not tole- 



OF THE SCHOONER SAVANNAH. 297 

rate aggressions of violence, and murder, and rapine, and 
plunder^ except by the recognized forces contending in the 
field. It has attempted to secure not only the exclusion of 
private armed vessels from privateering, but the exclusion of 
aggressions on the part of public armed vessels of belligerents 
on private property of all kinds upon the ocean. And no 
trace of any repugnance or resistance on the part of our Gov- 
ernment to aid and co-operate in that general melioration in 
the laws of war, in respect to property on the ocean, can be 
charged or proved. In pursuance of that purpose, as well as 
in conformity with a rightful maintenance of its particular 
predicament in naval war, — to wit., a larger commerce than 
most other nations, and a smaller navy, — it has taken logically, 
and diplomatically, and honestly, the position : I will not yield 
to these false pretences of humanity and melioration which 
will only deprive us of privateers, and leave our commerce 
exposed to your immense navies. If you are honest about it, 
as we are, and opposed to private war, why, condemn and 
repress private war in respect to the private character of the 
property attacked, as well as private war in respect to the 
vesssels that make the aggressions. 

!Nor, gentlemen, do I hesitate to say that, whatever we may 
readily concede to an honest difference of opinion and feeling, 
in respect to great national contests, where men, with patriotic 
purposes, raise the standard of war against the Government, 
and, on the other hand, uphold the old standard to suppress 
the violence of war lifted against it, we do not, we cannot, as 
honest and sensible men, look with favor upon an indiscrimi- 
nate collection from the looser portions of society, that rush 
on board a marauding vessel, the whole proceeds and results 
of whose aggressions are to fill their own pockets. And, when 
my learned friends seek to go down into the interior conscience 
and the secret motives of conduct, I ask you whether, if this 
had been a service in which life was to be risked, and all the 
energies of the man were to be devoted to the public service, for 
the glory and the interests of the country, and the poor food, 
poor clothing and poor pay of enlisted troops, you would have 
found precisely such a rush to that service ? 

Now, I am not seeking, by these considerations, to disturb 
in the least the legal protections, if there be any, in any form, 
which it is urged have sprung out of the character of privateer- 
ing which this vessel had assumed, and these men, as part of 
its crew, had been incorporated in. If legal, let it be so; but 
do not confound patriotism, which sacrifices fortune and life for 
the love of country, with the motives of these men, who seek 
privateering because they are out of employment. Far be it 
from me to deny that the feeling of lawful right, the feeling 



298 TRIAL OF THE OFFICERS AND CREW 

that statutory law is not violated, if it draw the line between 
doing and not doing a thing, is on the whole a meritorious con- 
sideration and a trait that should be approved. But I do ob- 
ject to having the range of these men's characters and motives 
exalted, from the low position in which their acts and conduct 
place them, into the high purity of the patriot and the martyr. 
We are trying, not the system of privateering — we are trying 
the privateers, as they are called ; and, when they fail of legal 
protection, they cannot cover themselves with this robe of 
righteousness in motive and purpose. 

Now, how much was there of violence in the meditated 
course, or in the actual aggression ? Why, the vessel is named 
in the commission as having a crew of thirty. In fact, she had 
twenty. Four men was a sufficient crew for a mercantile voy- 
age. She had an eighteen pounder, a great gun that must 
have reached half way across the deck, resting on a pivot in 
the middle, capable of being brought around to any quarter, for 
attack. At the time this honest master and trader of the Jo- 
seph descried the condition of the vessel, he was struck with 
this ugly thing amidships, as he called it — to wit, this eighteen 
pound cannon, and was afraid it was a customer probably ag- 
gressive — a robber. But he was encouraged by what ? Although 
he saw this was a pilot boat, and not likely, with good intent, to 
be out so far at sea, what was this honest sailor encouraged by ? 
The flag of the United States was flying at her mast ! But, 
when hailed — still under that view as to the aspect presented by 
the marauding vessel — he is told to come on board, and asks by 
what authority — instead of what would have been the glad and 
reassuring announcement — the power of the American flag — the 
Confederate States were announced as the marauding authority, 
and the flag of his country is hauled down, and its ensign re- 
placed by this threat to commerce. Now, when this gun, as 
he says, was pointed at him, and this hostile power was assert- 
ed, my learned friends, I submit to you, cannot, consistently 
with the general fairness with which they have pursued this 
argument, put the matter before you as failing in any of the 
completeness of proof concerning force. For, when we were 
proposing to show that these prisoners all the while, in their 
plans, had the purpose of force, if force was necessary, and 
that, in the act of collision with the capturing vessel, that force 
occurred, we were stopped, upon the ground that it was unneces- 
sary to occupy the attention of the Court and the Jury with 
anything that was to qualify this vessel's violent character, by 
reason of the admission that, if it was not protected by the com- 
mission, or the circumstances of a public character of what- 
ever kind and degree — about which I admit there was no re- 
striction of any kind, — if it stood upon the mere fact that the 



OF THE SCHOONER SAVANNAH. 299 

vessel was taken from its owners by the Savannah, in the way 
that was testified, — it would not be claimed to be wanting in any 
of the quality of complete spoliation, or in any of the quality of 
force. Now, that defence, we may say, must not be recurred 
to, to protect, in your minds, these men from the penalty which 
the law has imposed upon the commission of piracy. It can- 
not be pretended that there was any defect in the purpose of 
despoiling the original owners, nor that there is any deficiency 
in the exhibition of force, to make it piracy ; and you will per- 
ceive, gentlemen, that although my learned friends successive- 
ly, Mr. Dukes, Mr. Sullivan, and Mr. Brady, have, with the 
skill and the purpose of advocates, taken occasion, at frequent 
recurring points, to get you back to the want of a motive and in- 
tent or purpose of the guiltiness (>f robbing, yet, after all, it 
comes to this — that the inconsistency of the motive and in- 
tent, or the guiltiness of robbing, with the lawfulness, under 
the law of nations, of privateering, is the only ground or rea- 
son why the crime is deficiently proved. 

I do not know that I need say anything to you about priva- 
teering, further than to present somewhat distinctly what the 
qualifications, what the conditions, and what the purposes, of 
privateering are. In the first place, privateering is a part of 
war, or is a part of the preliminary hostile aggressions which 
are in. the nature of a forcible collision between sovereign 
powers. Now what is the law of nations on this subject — and 
how does there come to be a law of nations — and what is its 
character, what are its sanctions, and who are parties to it ? 
We all know what laws are when they proceed from a Govern- 
ment, and operate upon its citizens and its subjects. Law then 
comes with authority, by right, and so as to compel obedience ; 
and laws are always framed with the intent that there shall 
be no opportunity of violent or forcible resistance to them, or of 
violent or forcible settlement of controversies under them, but 
that the power shall be submitted to, and the inquiry as to 
right proceed regularly and soberly, under the civil and 
criminal tribunals. But, when we come to nations, although 
they have relations towards each other, although they have 
duties towards each other, although they have rights towards 
each other, and although, in becoming nations, they never- 
theless are all made up of human beings, under the general 
laws of human duty, as given by the common lawgiver, God, 
yet there is no real superior that can impose law over them, or 
enforce it against them. And it is only because of that, that 
war, the scourge of the human race — and it is the great vice 
and defect of our social condition, that it cannot be avoided — 
comes in, as the only arbiter between powers that have no com- 
mon superior. I am sure that the little time I shall spend 
upon this topic will be serviceable ; as, also, in some more par- 



300 TRIAL OF THE OFFICERS AND CREW 

ticular considerations, as to what is called a state of war, and 
as to the conditions which give and create a war between the 
different portions of our unhappy country and its divided popu- 
lation. So, then, nations have no common superior whom they 
recognize under this law, which they have made for themselves 
in the interest of civilization and humanity, and which is a law 
of natural right and natural duty, so far as it can be applied to 
the relations which nations hold to one another. They recognize 
the fact that one nation is just as good, as matter of right, of 
another ; that whether it be the great Powers of Russia, as 
England, of France, of the UnitedStates of America, or of Brazil, 
or whether it be one of the feeble and inferior Powers, in the 
lowest grade, — as, one of the separate Italian Kingdoms, or 
the little Republic of San Marino, whose territories are era- 
braced within the circuit of a few leagues, or one of the South 
American States, scarcely known as a Power in the affairs of 
men, — yet, under the proposition that the States are equal in the 
family of nations, they have a right to judge of their quarrels, 
and, finding occasions for quarrel, have a right to assert them, 
as matter of force, in the form of war. And all the other 
nations, however much their commerce may be disturbed and 
injured, are obliged to concede certain rights that are called the 
rights of war. We all understand what the rights of war are 
on the part of two people fighting against each other. A 
general right is to do each other as much injury as they can; 
and they are very apt to avail themselves of that right. There 
are certain meliorations against cruelty, which, if a nation 
should transgress, probably other nations might feel called upon 
to suppress. But, as a general thing, while two nations are 
fighting, other nations stand by, and do not intervene. But 
the way other nations come to have any interest, and to have 
anything to say whether there is war between sovereign 
powers, grows out of certain rights of war which the law of 
nations gives to the contending parties, against neutrals. For 
instance : Suppose Spain and Mexico were at war. "Well, you 
would say, what is that to us ? It is tliis to us. On the high 
seas, a naval vessel of either power has a right, in pursuit of 
its designs against the enemy, to interrupt the commerce of 
other nations to a certain extent. It has a right of visita- 
tion and of search of vessels that apparently carry our flag. 
Why? In order to see whether the vessel be really our 
vessel, or whether our flag covers the vessel of its enemy, or 
the property of its enemy. It has also a right to push its 
inquiries farther, and if it finds it to be a vessel of the United 
States of America, to see whether we are carrying what are 
called contraband of war into the ports of its enemy ; and, if 
so, to confiscate it and her. Each of the powers has a right to 



OF THE SCHOONER SAVANNAH. 301 

blockade the ports of the other, and thus to break up the trade 
and pursuits of the people of other nations — and that without 
any quarrel with the other people. And so you see, by the 
law of nations, this state of war, which might, at first, seem to 
be only a quarrel between the two contending parties, really 
becomes, collaterally, and, in some cases, to a most important 
extent, a matter of interest to other nations of the globe. But 
however much we suffer — however much we are embarrassed 
(as, for example, in the extreme injury to British commerce 
and British interests now inflicted in this country — the blockade 
keeping out their shipping, and preventing shipments of cotton 
to carry on their industry) — we must submit, as the Englisli 
people submit, in the view their Government has chosen to take 
of these transactions. 

Now, gentlemen, this being the law of nations, you will 
perceive that, as there is no human earthly superior, so there 
are no Courts that can lay down the law, as our Courts do for 
our people, or as the Courts of England do for their people. 
There are no Courts that can lay down the law of nations, so as 
to bind the people of another country, except so far as the 
Courts of that country, recognizing the sound principles of 
morality, humanity and justice obtaining in the government 
and conduct of nations towards each other, adopt them in their 
own Courts. So, when my learned friends speak of the. law of 
nations as being the law that is in force here, and that may 
protect these j)risoners in this case against the laws of the United 
States of America, why, they speak in the sense of lawyers, or 
else in a sense that will confuse your minds, that is to say, that 
the law of nations, as the Court will expound and explain it, 
has or has not a certain effect upon what would be otherwise 
the plain behests of the statute law. 

Now, it is a part of the law of nations, except so far as 
between themselves they shall modify it by treaty — (two instan- 
ces of which 1 have read in the diplomacy of our own country, 
and a most extensive instance of which is to be found in the 
recent treaty of Paris, whereby the law of nations, in respect 
to privateering, has been so far modified as to exclude priva- 
teering as one of the means of war) — outside of particular 
arrangements made by civilized nations, it was a part of the 
original law of war prevailing among nations, that any nation 
engaged in war might fit out privateers in aid of its belligerent 
or warlike purposes or movements. No difficulty arose about 
this when war sprang up between two nations that stood before 
the world in their accredited and acknowledged independence. 
If England and France went to war, or if England and the 
United States, as in 1812, went to war, this right of fitting out 
privateers would obtain and be recognized. But, there arises, 



302 TRIAL OF THE OFFICERS AND CREW 

in the affairs of nations, a condition much more obscure and 
uncertain than this open war between established powers, and 
that is, when dissension arises in the same original nation — 
when it proceeds from discontent, sedition, private or local 
rebellion, into the inflammation of great military aggression ; 
and when the parties assume, at leastl, (assume, I say), to be 
rightfully entitled to the position of Powers, under the law of 
nations, warring against one another. The South American 
States, in their controversy which separated them from the 
parent country, and these States, when they were Colonies of 
Great Britain, presented instances of these domestic dissensions 
between the different parts of the same Government, and the 
rights of war were claimed. Now, what is the duty of other 
nations in respect to that ? Why, their duty and right is this — 
that they may either accord to these struggling, rebellious, 
revolted populations the rights of war, so far as to recognize 
them as belligerents, or not ; but, whether they will do so, or 
not, is a question for their Governments, and not for their 
Courts, sitting under and by authority of their Governments. 
For instance, you can readily see that the great nations of the 
earth, under the influences upon their commerce and their 
peace which I have mentioned, may very well refuse to tole- 
rate the quarrel as being entitled to the dignity of war. They 
may say — Ko, no ; we do not see any occasion for this war, or 
any justice or benefit that is to be promoted by it ; we do not see 
the strength or power that is likely to make it successful ; and 
we will not allow a mere attempt or effort to throw us into the 
condition of submitting to the disturbance of the peace, or the 
disturbance of the commerce of the world. Or, they may say — 
We recognize this right of incipient war to raise itself and fairly 
contend against its previous sovereign — not necessarily from 
any sympathy, or taking sides in it, but it is none of our affair ; 
and the principles of the controversy do not prevent us from 
giving to them this recognition of their supposed rights. Now, 
when they have done that, they may carry their recognition of 
right and power as far as they please, and stop where they please. 
They may say — We will tolerate the aggression by public armed 
vessels on the seas, and our vessels shall yield the right of visita- 
tion and search to them. They may say — We will extend it so far 
as to include the right of private armed vessels, and the rights 
of war may attend them ; or they may refuse to take this last 
step, and say — We will not tolerate the business of privateering 
in this quarrel. And, whatever they do or say on that subject, 
their Courts of all kinds will follow. 

Apply this to the particular trouble in our national affairs 
that is now progressing to settle the fate of this country. France 
and England have taken a certain position on this subject I 



OF THE SCHOONER SAVAJSnSTAH. 303 

do not know whether I accurately state it (and I state it only 
for the purpose of illustration, and it is not material), but, as I 
understand it, they give a certain degree of belligerent right, 
so that they would not regard the privateers on the part of 
the Southern rebellion as being pirates, but they do not accord 
succor or hospitality in their ports to such privateers. Well, 
now, suppose that one of these privateers intrudes into their 
ports and their hospitalities, and claims certain rights. Why, 
the question, if it comes up before a Court in Liverpool or Lon- 
don, will be — Is the right within the credit and recognition 
which our Government has given ? And only that. So, too, 
our Government took the position in regard to the revolt- 
ing States of South America, that it would recognize them as 
belligerents, and that it would not hang, as pirates, privateers 
holding commissions from their authority. But, when other 
questions came up, as to whether a particular authority from 
this or that self-styled power should be recognized, our Gov- 
ernment frowned upon it, and would not recognize it. With 
regard to Captain Aury, who styled himself Generalissimo of 
the Floridas, or something of that kind, when Florida was a 
Spanish province, our Courts said — We do not know anything 
about this — his commissions are good for nothing here — our 
Government has not recognized any such contest or incipient 
nationality as this. So, too, in another case, where there was 
an apparent commission from one struggling power, the Court 
say — Our Government does not recognize that power, and we 
do not, in giving any rights of war to it ; but, the Court say, it 
appears in the proof that this vessel claims to have had a 
commission from Buenos Ayres, another contending power ; if 
so, that is a power which our Government recognizes ; and the 
case must go down for further proof on that point. 

I confess that, if the views of my learned friends are to 
prevail, in determining questions of crime and responsibility 
under the laws and before the Court, and are to be accepted 
and administered, I do not see .that there is any Government 
at all. For you have every stage of Government : first. Gov- 
ernment of right ; next, a Government in fact ; next, a Govern- 
ment trying to make itself a fact ; and, next, a Government 
which the culprit thinks ought to be a fact. Well, if there are 
all these stages of Government, and all these authorities and 
protections, which may attend the acts of people all over the 
world, I do not see but every Court and every Jury must, 
finally, resolve itself into the great duty of searching the hearts 
of men, and putting its sanctions upon pure or guilty secret 
motives, or notions, or interpretations of right and wrong — a 
task to which you, gentlemen of the Jury, I take it, feel 
scarcely adequate. 



304 TRIAL OF THE OFFICERS AND CREW 

Now, gentlemen, I liave perhaps wearied you a little upon 
this subject ; because it is from some confusion in these ideas, — 
first, of what the law of nations permits a Government to do, 
and how it intrudes upon and qualifies the laws of that Govern- 
ment ; and, second, upon what the rights are that grow out of 
civil dissensions, as towards neutral powers, — that some diffi- 
culty and obscurity are introduced into this case. 

If the Court please, I maintain these propositions, in con- 
formity with the views I have heretofore presented — first, that 
the law of the land is to determine whether this crime of piracy 
has been committed, subject only to the province of the Jury 
in passing upon the facts attending the actual perjDetration of 
the off'ence ; and, second, upon all the questions invoked to 
qualify, from the public relations of the hostile or contending 
parties in this controversy, the attitude that this Government 
holds towards these contending parties, is the attitude that this 
Court, deriving its authority from this Government, must neces- 
sarily hold towards them. 

1 have argued this matter of the choice and freedom of a 
Government to say how it will regard these civil dissensions 
going on in a foreign nation, as if it had some application to 
this controversy, in which we are the nation, and this Court is 
the Court of this nation. 

But, gentlemen, the moment I have stated that, you will 
see that there is not the least pretence that there is any dis- 
pensing power in the Court, or that there has been any dispens- 
ing power exercised by our Government, or that there has 
been any pardon, or any amnesty, or any proclamation, saving 
from the results of crime against our laws, any person engaged 
in these hostilities, who at any time has owed allegiance and 
obedience to the Government of the United States. Therefore, 
here we stand, really extricated from all the confusion, and 
from all the wideness of controversy and of comment that 
attends these remote considerations of this case, that have 
been pressed upon your attention as if they were the ceas 
itself, on the part of our learned friend. 

Now, if the Court please, I shall bestow some particular 
consideration upon the statute, but I shall think it necessary 
to add very little to the remarks I have heretofore made to 
the Court. The 8th section of the statute has been charac- 
terized by the learned counsel, and, certainly, with sufficient 
accuracy, for any purposes of this trial, as limited to the 
off'ence of piracy as governed by the law of nations. I do not 
know that any harm comes from that description, if we do not 
confuse it with the suggestion that the authority of this Gov- 
ernment over the crime is limited to the construction of the 
law of nations which is expressed in that section of the statute. 



OF THE SCHOONER SAVANNAH. 



305 



At all events, as they concede, I believe, that the 8th section is 
within the constitutional right and power of Congress, under 
the special clause giving them authority to define and pun- 
ish piracy, under the law of nations, there is no room for 
controversy here on the point. When we come to the_9th 
section, we have two different and quite inconsistent views 
presented by the different counsel. One of the counsel (I think,, 
Mr. Dukes) insists that the 9th section does not create any 
additional crime beyond that of piracy as defined in the 8th 
section, but only robs that crime of piracy of any apparent 
protection from a commission or authority from any State. 
But, my friend Mr. Brady contends (and, 1 confess, according: 
to my notion of the law, with more soundness) that there fs an 
additional crime, which would not be embraced, necessarily, in 
the crime of piracy or robbery on the high seas — which is the 
whole purview of the 8th section, and which is in terms re- 
peated in the 9th — and that the additional words, " or any act 
of hostility against the United States, or any citizens there- 
of," create a punishable offence, although it may fall short of 
the completed crime of piracy and robbery, as defined. Now, I 
concede to my learned friend that the particular case he put 
of a quarrel between two ships' crews on the high seas, and ©^ 
an attack by one of the crew of one upon one of the crew 
of the other with a belaying pin, would not, in my judgmentj, 
as an indictable, punishable offence, fall within the 9th section^ 
But, whether I am right or wrong about it, it does not im- 
^ede the argument of the Government, that there are crimes 
which are in the nature of and up to the completeness of hos- 
tile attacks upon vessels or citizens of the United States which 
would not be piracy, but yet are punishable under the 9th 
section. 

Now, agreeing, thus far, that there is an added offence to- 
the crime of piracy in the 9tli section, I am obliged to meet 
his next proposition, that such additional ofience is beyond?' 
the constitutional power of Congress, because it is an offence 
which does not come np to the crime of piracy, and, there- 
fore, exceeds the grant of authority under the particular sec- 
tion of tiie Constitution which gives to Congress power over 
the definition and punishment of piracy under the law of 
nations. 

Now, if the Court please, the argument is a very simple' 
one. This 9th section does not profess to carry the power of this 
Government where alone the principles of the law of nations 
would justify ; that is, to operate upon all the world, so far as 
the subjects of it — that is, the persons included in its sanctions — 
are concerned, or so far as the property protected by it is con- 
cerned . It is limited to citizens, and limited to hostilities against 
20 



306 TRIAL OF THE OFFICERS AND CREW 

citizens of the United States, or their property at sea. Now, the 
authority in respect to this comes to Congress under the provi- 
sion of the Constitution which gives the regulation of commerce 
and its control, in regard to which I need not be more particular 
to your Honors, because there are statutes of every-day enforce- 
ment, and under the highest penalty, too, of the law, such as 
revolt, mutiny, &c., which have nothing to do with the national 
considerations of the law of piracy, and nothing to do with the 
clause of the Constitution wiiich gives to Congress power over 
the crime of piracy, but rest in the power reposed in Congress 
to protect the commerce of the United States. So, this is 
wholly within the general competency of Congress to govern 
citizens of the United States on the high seas, and to protect 
the property of citizens on the high seas, although there is no 
common law of general jurisdiction of Congress on the sub- 
ject of crimes. 

Now, upon this subject there is but one other criticism, and 
that is — that although the statute is framed with the intent, and 
its language covers the purpose, of prohibiting any defence or 
protection being set up under an assumed or supposed author- 
ity from any foreign Government, State, or Prince, or from any 
ferson, yet the particular authority which is averred in 
the indictment and produced in proof, if you take it in the 
sense that we give to it, is not within the purview of the stat- 
tute, and, if you take it in any other sense, is not proved ; 
a,nd that thus a variance arises between the indictment and the 
proof, because the proof goes so far as to remove from under 
the statute the four defendants who would otherwise be amen- 
able as citizens, by making the Government foreign, and mak- 
ing them foreign citizens. Now, to take up one branch of this 
at a time, I do not care at all whether the Government of the 
United States, when they passed this law, anticipated that 
there ever would be an occurrence which would give shape to 
such a commission as this, from either a person or an authority 
that emanated from what was or ever had been a part or a citi- 
zen of the United States. If these new occurrences here have 
produced new relations — (and that is the entire argument of my 
learned friends, for, if they have produced no new relations, 
wliat have we to do with any of these discussions ?) — if they have 
produced new relations, perfect or imperfect, effectual or in- 
effectual, to this or tliat extent, why then, if these new relations 
and attitude have brought this matter within the purview of a 
statute of the United States which was framed to meet all rela- 
tions that might arise at any time, they come within its pre- 
dicament, and the argument seems to me to amount to nothing. 
It will not be pretended that the 9th section of this statute can 
only be enforced as to Powers in existence at the time it was 



OF THE 60H00NEK SAVANNAH. 307 

passed. Whenever a new Power or new authority is set forth 
as a protection to the crime of piracy, the 9th section of tlie 
statute says : "Well, we do not know or care anything about 
what the law of nations says about your protection, or your 
authority — we say that no citizen of the United States, 
depredating against our commerce, shall set up any au- 
thority to meet the justice of our criminal la\V." Well, 
now, that the statute has said ; and we have averred and proved 
the commission such as it is. It is either the commission of a 
foreign Prince, or State, or it is an authority from some per- 
son. We do not recognize it as from a foreign State or Prince. 
Indeed, Mr. Davis does not call himself a Prince, and we do 
not recognize the Confederate States as a nation or State, in 
any relation. Therefore, if we would prove this authority un- 
der our law, we must aver it as it is, coming from an individual 
who was once a citizen of the United States, and still is, as the 
law decides, a citizen of the United States. Whatever port or 
pretension of authority he assumes, and whatever real fact and 
substance there may be to his power, it is, in the eye of the 
law, nothing. It is not provable, and it is not proved. 

Now, as to the right of Congress to include the additional 
crime, under the authority given to it to punish piracy accord- 
ing to the law of nations, my learned friend contends that this 
statute is limited by that authority, and is, as respects any- 
body within its purview, unconstitutional, and that, although 
a particular act may be within the description of the statute, 
60 far as regards hostility, it is not piracy. On that subject I 
refer your Honors to a very brief proposition contained in the 
case of The United States v. Pirates (5 Wheaton, 202) : 

And if the laws of the United States declare those acts of piracy in a 
citizen, when committed on a citizen, which would be only belligerent acts 
when committed on others, there can be no reason why such laws should not 
be enforced. For this purpose the 9th section of the Act of 1790 appears to 
have been passed. And it would be difflcult to induce this Court to render 
null the provisions of that clause, by deciding either that one who takes a com- 
mission under a foreign power, can no longer be deemed a citizen, or that all 
acts committed under such a commission, must be adjudged belligerent, and 
not piratical acts." 

I would also refer to the case of The Invincible, to which my 
learned friend called the attention of the Court, in the opinion of 
the late Attorney -General, Mr. Butler. It is to be found in the 
3d volume of the Opinions of the Attorney- Generals, P^ge 120. 
My learned friend cited this case in reference to the proposi- 
tion that persons holding a commission (as I understood him) 
should not be treated as pirates, under the law of nations, 
by reason of any particular views or opinions of our Govern- 
ment. I refer to that part of the opinion where he says : " A 
Texan armed schooner cannot be treated as a pirate under tha 



308 TRIAL OF THE OFFICERS AND CREW 

Act of April 30th, 1790, for capturing an American merchant- 
man, on the alleged ground that she was laden with provisions, 
stores, and munitions of war for the use of the army of Mexico^ 
with the Government of which Texas, at the time, was in a 
state of revolt and civil war." 

Now, undoubtedly, Mr. Butler does here hold that, by the law 
of nations, in a controversy between revolting Colonies and the 
parent State, where our Government recognizes a state of war 
as existing, a privateer cannot be treated as a pirate. But we 
will come to the opinion of the Attorney-General on the 
other proposition we contend for — that is, in support of the 
9th section of the statute, as far as it would have exposed citi- 
zens of the United States to the penalty of piracy : 

" In answer to this question, I have the honor to state that, in my opin" 
ion, the capture of the American ship Pocket can in no view of it be deemed 
an act of piracy, unless it shall appear that the principal actors in the cap- 
ture were citizens of the United States. The ninth section of the Crimes Act 
of 30th April, 1790, declares ' that if any citizen shall commit any piracy or 
robbery, or any act of hostility against the United States, or any citizen 
thereof, upon the high seas, under color of any commission from any foreign 
Prince, or State, or on pretence of authority from any person, such oflFender 
shall, notwithstanding the pretence of any such authority, be deemed, ad- 
judged and taken to be a pirate, felon and robber, and on being thereof 
convicted, shall suffer death.' This provision is yet in force, and should it be 
found that any of those who participated in the capture of the Pocket are 
American citizens, the flag and commission of the Government of Texas would 
not protect them from the charge of piracy ^ 

It will be seen here, that the condition of belligerents will 
not protect our citizens from aggressions against our commerce ; 
and there is no place for my learned friends to put this author- 
ity, and this assumed belligerent power and right, on any 
footing that must not make it, either actually or in pretence, at 
least, proceed from a separate contending power. And, if they 
say, (as, in one of their points substantially is said,) that the 9th 
section cannot apply, because the alleged authority is not from a 
foreign State, or a foreign personage, but from a personage of 
our own country, — why, then, we are thrown back at once to 
the 8th section entirely, and there is either no pretence 
of authority at all, and it is just like arguing that the pirate 
accused was authorized by the merchant owner of a vessel in 
South street, to commit piracy, or we are put in the position, 
which is unquestionably the true one, that the 9th section was 
intended to cover all possible although unimagined forms in 
which the justice of the coimtry could be attempted to be im- 
peded under the claim of authority. 

Now, gentlemen, if the Court please, I come to a con- 
sideration of the political theories or views on which these 
prisoners are sought to be protected against the penalties of 



OF THE SCHOONER SAVANNAH. 309 

this law. In that argument, as in ray argument, it must be 
assumed that these penalties, but for those protections, would, 
be visited upon them ; for we are not to be drawn hither and 
thither bj this inquiry, and to have it said, at one time, that 
the crime itself, in its own nature, is not proved, and, at 
another time, that, if it be proved, these are defences. I have 
said all I need to say, and all I should say, about the crime 
itself. The law of -the case on that point will be given to you 
by the Court, and, if it should be, as I suppose it must, in ac- 
cordance with that laid down by the Court in the Circuit of 
Pennsylvania, then, as my learned friend Mr. Brady has said 
of that, that he could not see how the Jury could find any 
verdict but guilty, it necessarily follows, if that is a sound 
view of the law, that you cannot find any other verdict but 
guilty. I proceed,, therefore, to consider these other defence 
'which grow out of the particular circumstances of the piracy. 

Now, there are, as I suggested, three views in which tnis 
subject of the license, or authority, or protection against our 
criminal laws in favor of these prisoners, is urged, from their 
connection with particular occurrences disclosed in the evi- 
dence. One is, that they are privateers ; but I have shown 
you that, to be privateers, their commission must come from 
an independent nation, or from an incipient nation, which our 
Government recognizes as such. Therefore, they fail entirely 
to occupy that explicit and clear position, under the law of the 
land, and the law of nations. But, as they say, they are pri- 
vateers either of a nation or a Power that exists, as the phrase 
is, de jure, — that has a right, the same as we, or England, or 
France, — or of a Power that has had sufiicient force and strength 
to establish itself, as matter of fact. Without considering the 
question of right, as recognized under the system of nations, 
they contend, and with a great deal of force and earnestness, in 
the impression of their views upon the Jury, and great skill 
and discretion in handling the matter, — they contend that there 
is a state of civil war in this country, and that a state of civil 
war gives to all nations engaged in it, against the Government 
with which they are warring, rights of impunity, of protection, 
of respect, of regard, of courtesy, which belong to the laws of 
war ; and that, without caring to say whether they are a Gov- 
ernment, or ever will be a Government, so long as they fight, 
they cannot be punished. 

That is the proposition, — there is nothing else to it. They 
come down from the region of ^^ywre Government and de facto 
Government, and have nothing to prove but the rage of war on 
the part of rebels, in force enough to be called war. Then they 
say that, by their own act, they are liberated from the laws, 



310 TKIAL OF THE 0FFICEK8 AND CKEW 

and from their duty to the laws, which would otherwise, thejr 
admit, have sway over them, and against which they have not 
as yet prevailed. Tliat is the proposition. 

Another proposition, on which they put themselves, is that 
whatever may be the law, and whatever the extent of the facts, 
if any of these persons believed that there was a state of war, 
rightful to be recognized, and believed, in good faith, that they 
•were fighting against the United States Government, they had 
a right to seize the property of United States' citizens ; and 
that, if they believed that they constituted part of a force co- 
operating, in any form or effect, with the military power which 
has risen up against the United States of America, then, so long 
as they had that opinion, they, by their own act, and their 
own construction of their own act, impose the law upon this 
Government, and upon this Bench, and upon this Jury, and 
compel you to say to them that if, in taking, in a manner 
which would have been robbery, this vessel, the Joseph, 
they were also fighting against the- United States of America, 
they have not committed the crime of piracy. 

]S"ow, if the Court please, and gentlemen of the Jury, let 
us, before we explore and dissect these propositions, — before we 
discover how utterly subversive they are of any notions of Gov- 
ernment, of fixity in the interpretation of the law, or certainty 
in the enforcement of it, — let us see what you will fairly con- 
sider as being proved, as matter of fact, concerning the con- 
dition of aflfairs in this country. Let us see what legal discrimi- 
nation or description of this state of things is likely to be sig- 
nificant and instructive, in determining the power and authority 
of the Government, and the responsibility of these defendants. 
They began with an Ordinance of South Carolina, passed on 
the 20th of December of last year, which, in form and substance, 
simply annulled the Ordinance of that State with]which, as they 
say, they ratified or accepted the Constitution of the United 
States. They then went on with similar proceedings on the part 
of the States of Georgia, Alabama, Mississippi, and Florida, 
showing the establishment and adoption of a Provisional Con- 
stitution, by which they constituted and called themselves the 
Confederate States of America. They proved, then, the organi- 
zation of the Government, the election of Mr. Davis and Mr, 
Stephens as President and Vice-President, and the appointment 
of Secretaries of War, and of the Navy, and other portions of the 
civil establishment. They proved, then, the occurrences at Fort 
Sumter, and gave particular evidence of the original acts at 
Charleston — the firing on the Star of the West, and the corres- 
pondence which then took place between Major Anderson and 
the Governor of South Carolina. They then went on to prove the- 



OF THE SCHOONER SAVANNAH. 311 

evacuation of Fort Moultrie ; the storming of Fort Sumter ; the 
Proclamation of the President of the United States, of the 16th 
of April, calling for 75,000 troops ; Mr. Davis' Proclamation, of 
the 17th of April, inviting privateers; and then the President's 
Proclamation, of the 19th of April, denouncing the punishment 
of piracy against privateers, and putting under blockade the 
coasts of the revolted States. The laws about privateering 
passed by what is called the Confederate Government, have, 
also, been read to you ; and this seems to complete the docu- 
mentary, and constitutional, and statutory proceedings in that 
disaffected portion of the country. But what do the prisoners 
prove further? That an actual military conflict and collision 
commenced, has proceeded, and is now raging in this country, 
wherein we find, not one section of the country engaged in a 
military contest with another section of the country — not 
two contending factions, in the phrase of Vattel, dividing 
the nation for the sake of imtional power — but the Gov- 
ernment of the United States, still standing, without the 
diminution of one tittle of its power and dignity — without 
the displacement or disturbance of a single function of its 
executive, of its legislative, of its judicial establishments — 
without the disturbance or the defection of its army or its navy 
— without any displacement in or among the nations of the 
world — without any retreat, on its part, or any repulsion, on the 
part of any force whatever, from its general control over the 
affairs of the nation, over all its relations to foreign States, over 
the high seas, and over every part of the United States them- 
selves, in their whole length and breadth, except just so far as 
military occupation and military contest have controlled the 
peaceful maintenance of the authority and laws of the Govern- 
ment. 

Now, this may be conceded for all sides of the controversy. 
I do not claim any more than these proofs show, and what we 
all know to be true ; and I am but fair in conceding that they 
do show all the proportions and extent which make up a con- 
test by the forces of the nation, as a nation, against an armed 
array, with all the form and circumstances, and with a number 
and strength, which make up military aggression and military 
attack on the part of these revolting or disaffected communities 
or people. 

Now, some observations have been made, at various stages 
of this argument, of the course the Government has taken in 
its declaration of a blockade, and in its seizure of prizes by its 
armed vessels, and its bringing them before the Prize Courts ; 
and my learned friend, Mr.^rady, has done me the favor to al- 
lude to some particular occasion on which I, on behalf of the 



-312 TRIAL OF THE OFFICERS AND CREW 

Government, in the Admiralty Court, hav^e contended for certain 
■principles, which would lead to the judicial confiscation of prizes, 
under the law of the land, or under the law of nations 
adopted and enforced as part o'f the law of the land. Well, 
now, gentlemen, I understand and agree that, for certain pur- 
poses, there is a condition of war which forces itself on the at- 
tention and the duty of Governments, and calls on them to exert 
the power and force of war for their protection and maintenance. 
And I have had occasion to contend — and the learned Courts 
Lave decided — that this nation, undertaking to suppress an 
,armed military rebellion, which arrays itself, by land and by 
sea, in the forms of naval and military attack, has a right to 
exert — under the necessary principles which control and re- 
quire the action of a nation for its own preservation, in these 
circumstances of danger and of peril — not only the usual magis- 
terial force of the country — not only the usual criminal laws — 
not only such civil posses or aids to the officers of the law as 
may be obtained for their assistance — but to take the army and 
the navy, the strength and the manhood of the nation, which 
it can rally around it, and in every form, and by every author- 
ity, human and divine, suppress and reduce a revolt, a rebell- 
ion, a treason, that seeks to overthrow this Government in, at 
least, a large portion of its territory, and among a large portion 
of its people. In doing so, it may resort — as it has resorted — 
Ao tlie method of a warlike blockade, which, by mere force of 
naval obstruction, closes the harbors of the disaffected portion 
of the country against all commerce. Having done that, it has 
a right, in its Admiralty Courts, to adjudicate upon and con- 
demn as prizes, under the laws of blockade, all vessels that shall 
«eek to violate the blockade. Nor, gentlemeii, have I ever de- 
nied — nor shall I here deny — that, when the proportions of a 
civil dissension, or controversy, come to the port and dignity of 
war, good sense and common intelligence require the Govern- 
ment to recognize it as a question of fact, according to the actual 
-circumstances of the case, and to act accordingly. I, therefore, 
liave no difficulty in conceding that, outside of any question of 
law and right — outside of any question as to whether there is a 
Government down there, whether nominal or real, or that can 
be described as having any consistency of any kind, under 
our law and our Government — there is prevailing in this 
country a controversy, which is carried on by the methods, 
..and which has the proportions and extent, of what we call 
war. 

War, gentlemen, as distinguished from peace, is so distin- 
guished by this proposition — that it is a condition in which force 
on one side and force on the other are the means used in the 



OF THE SCHOONER SAVANNAH. 313 

actual prosecution of the controversy. Now, gentlemen, if 
the Court please, I believe that that is all that can be claimed, 
and all that has been claimed, on behalf of these prisoners, in 
regard to the actual facts, and the condition of things in this 
country. And I admit that, if this Government of ours were not 
a party to this controversy, — if it looked on it from the outside, 
as England and France have done, — our Government would 
have had the full right to treat these contending parties, in its 
Courts and before its laws, as belligerents, engaged in hostili- 
ties, as it would have had an equal right to take the opposite 
course. Which course it would have taken, I neither know, 
nor should you require to know. 

But, I answer to the whole of this, if the Court please, that 
it is a war in which the Government recognizes no right what- 
ever on the part of the persons with whom it is contending ; and 
that, in the eye of the law, as well as in the eye of reason and 
sound political morality, every person who has, from the be- 
ginning of the first act of levying war against the United States 
iuntil now, taken part in this war, actively and effectively, in 
any form — who has adhered to the rebels — who has given aid, 
information, or help of any kind, wherever he lives, whether 
he sends it from New Hampshire or New York, from Wiscon- 
sin or from Baltimore — whether he be found within or without 
the armed lines — is, in his own overt actions, or open espousal of 
ihe side of this warring power, against the Government of the 
United States, a traitor and a rebel. I do not know that there 
is any proposition whatever, of law, or any authority whatever, 
that has been adduced by my learned friends, in which they 
will claim, as matter of law, that they are not rebels. I invited 
the attention of my learned friends, as 1 purposed to call that 
of the Court, to the fact, that the difficulty about all this busi- 
ness was, that the plea of authority or of war, which these pris- 
oners interposed against the crime of piracy, was nothing but a 
plea of their implication in treason. I would like to hear a so- 
ber and solemn proposition from any lawyer, that a Govern- 
ment, as matter of law, and a Court, as matter of law, can- 
not proceed on an infraction of a law against violence either 
to person or property, instead of proceeding on an indictment 
for treason. The facts proved must, of course, maintain the 
personal crime ; and there are many degrees of treason, or facts 
of treason, which do not include violent crime. But, to say 
that a person who has acted as a rebel cannot be indicted as 
an assassin, or that a man who has acted, on the high seas, as 
a pirate, if our statutes so pronounce him, cannot be indicted, 
tried and convicted as a pirate, because he could plead, as the 
shield of his piracy, that he committed it as part of his treason, 



314 TRIAL OF THE OFFICERS AND CREW 

is, to my apprehension, entirely new, and inconsistent with the 
first princij)les of justice. 

IS ow, this very statute of piracy is really a general Crimea 
Act. The first section is : 

"If any person or persons owing allegiance to the United States of 
America shall levy war against them, or shall adhere to their enemies, giving 
them aid and comfort within the United States, or elsewhere, and shall be 
thereof convicted," " such person or persons shall be adjudged guilty of 
treason against the United States, and shall suffer death." 

Now, you will observe that treason is not a defence against 
piracy ; nor is good faith in treason a defence against treason, 
or a defence against piracy. What would be the posture of 
these prisoners, if, instead of being indicted for piracy, they 
were indicted for treason? Should we then hear anything 
about this notion that there was a war raging, and that they 
were a party engaged in the war? Why, that is the very de- 
finition of treason. Against whom is the war? Against the 
United States of America. Did you owe allegiance to the 
United States of America ? Yes, the citizens did ; and I need 
not say to you, gentlemen, that those residents who are not citi- 
zens owe allegiance. There is no dispute about that. Those 
foreigners who are living here unnaturalized are just as much 
guilty of treason, if they act treasonably against the Govern- 
ment, as any of our own citizens can be. That is the law of 
England, the law of treason, the necessary law of civilized 
communities. If we are hospitable, if we make no distinction, 
as we do not, in this country, between citizens, and foreigners 
resident here and protected by our laws, it is very clear we 
cannot make any distinction when we come to the question of 
who are faithful to the laws. So, therefore, if they were in- 
dicted for treason, what would become of all this defence ? It 
would be simply a confession in open Court that they were 
guilty of treason. Well, then, if they fell back on the proposi- 
tion, — " We thought, in our consciences and judgments, that 
either these States had a right to secede, or that they had a right 
to carry on a revolution ; that they were oppressed, and were 
entitled to assert themselves against an oppressive Government, 
and we, in good faith, and with a fair expectation of success, 
entered into it," — what would become of them ? The answer 
would be, " Good faith in your attempt to overthrow the 
Government, does not excuse you from responsibility for the 
crime of attempting it." Our statute is made for the purpose 
of protecting our Government against efforts made, in good 
faith or in bad faith, for its overthrow. 

And now, in this connection, gentlemen, as your attention, 
as well as that of the Court, has been repeatedly called to it, 



OF THE SCHOONER SAVANNAH. 



315 



let me advert again to the citation from that enlightened public 
writer, Yattel, who has done as much, perhaps, as our learned 
friends have suggested, to place on a sure foundation the 
amelioration of the law of nations in time of war, and their 
intercourse in time of peace, as any writer and thinker whom, 
our race has produced. You remember, that he asks — How 
shall it be, when two contending factions divide a State, 
in all the forms and extent of civil war — what shall be the 
right and what the duty of a sovereign in this regard ? Shall 
he put himself on the pride of a king, or on the flattery of a 
courtier, and say, I am still monarch, and will enforce against 
every one of this multitude engaged in this rebellion the 
strict penalties of my laws ? Vattel reasons, and reasons very 
properly : You must submit to the principles of humanity 
and of justice ; you must govern your conduct by them, 
and not proceed to an extermination of your subjects because 
they have revolted, whether with or without cause. You 
must not enforce the sanctions of your Government, or maintain 
its authority, on methods which would produce a destruction of 
your people. And you must not further, by insisting, under 
the enforced circumstances which surround you, on the extreme 
and logical right of a king, furnish occasion for the contending 
rebels, who have their moments of success and power, as well 
as you, to retaliate on your loyal people, victims of their strug- 
gle on your behalf, and thrown into the power of your rebel- 
lious subjects, — to retaliate, I say, on them the same extreme 
penalties, without right, without law, but by mere power, which 
you have exerted under your claim of right. 

And now, gentlemen of the Jury, as the Court very well 
understands, this general reasoning, which should govern the 
conduct of a Sovereign, or of a Government, against a mere 
local insurrection, does not touch the question as to whether the 
law of the nation in which the Sovereign presides, and in vio- 
lation of which the crime of the rebels has been perpetrated, 
shall be enforced. There has been, certainly, in modern times, 
no occasion when a Sovereign has not drawn, in his discretion, 
and under the influence of these principles of humanity and 
justice, this distinction, and has not interposed the shield of 
nis own mercy between the offences of misled and misguided 
masses of his people and offended laws. We know the differ- 
ence between law and its condemnation, and mercy and its 
saving grace ; and we know that every Government exercises 
its discretion. And, I should like to know why these learned 
counsel, who are seeking to interpose, as a legal defence on the 
partof a criminal, the principles of policy and mercy which should 
guide the Government, are disposed to insist that this Govern- 
ment, in its prosecutions and its trials, has shown a disposition 



316 TRIAL OF THE OFFICERS AND CREW 

to absolve great masses of criminals from the penalties of its 
laws. I should like to know, when my learned friend Mr. 
Brady, near the close of his remarks, suggested that there had 
been no trial for treason, whether this Government, from the 
.first steps in the outbreak, down to the final and extensive 
rage of the war, has not foreborne to take satisfaction for the 
wrongs committed against it, and has not been disposed to 
carry on and sustain the strength of the Government, without 
bloody sacrifices for its maintenance, and for the offended jus- 
tice of the land. But it is certainly very strange if, when a 
Government influenced by those principles of humanity of 
which Yattel speaks, and which my learned friends so much 
insist upon, has foreborne, except in signal instances, or, if you 
please, in single instances that are not signal, to assert the stand- 
ard of the law's authority and of the Government's right, — 
that it may be seen that the sword of justice, although kept 
•sheathed for the most part, has yet not rusted in its scabbard, 
and that the Government is not faithless to itself, or to its laws, 
its powers, or its duties, in these particular prosecutions that 
have been carried, one to its conclusion, in Philadelphia, and 
the other to this stage of its progress, here, — it is strange, 
indeed, that the appeal is to be thrust upon it — "Do not include 
the masses of the misguided men !" and, when it yields so 
mercifully to that appeal, and says — " I will limit myself to 
the least maintenance and assertion of a right," that the answer 
is to come back : " Why, how execrable — how abominable, to 
make distinctions of that kind !" 

But, gentlemen, the mercy of the Government, as I have 
said to you, remains after conviction, as well as in its determi- 
nation not to press numerous trials for treason ; but it is an 
attribute, both in forbearing to try and in forbearing to exe- 
cute, which is safely left where the precedents that are to 
shape the authority of law cannot be urged against its exercise. 
Now, I look upon the conduct and duty of the Government on 
somewhat larger considerations than have been pressed before 
you here. The Government, it is said, does not desire the con- 
viction of these men, or, at least, should not desire it. The 
Government does not desire the blood of any of its misguided 
people. The Government — the prosecution — should have no 
passion, no animosities, in this or in any other case ; and our 
learned friends have done us the favor to say that the case is 
presented to you as the law should require it to be ; that you, 
and all, are unaffected and unimpeded in your judgment ; and 
that, with a full hearing of what could be said on the part of 
these criminals, you have the case candidly and openly before 
jou. 

Now, gentlemen, the Government, although having a large 



OF THE SCHOONER SAVANNAH. 317 

measure of discretion, has no right, in a country where the 
Government is one wholly of law, to repeal the criminal law, 
and no right to leave it without presenting it to the observation, 
the understanding, and the recognition of all its citizens, 
whether in rebellion or not, in its majesty, in its might, and in 
its impartiality. The Government has behind it the people, 
and it has behind it all the great forces which are breathing on 
our agitated society, all the strong passions, all the deep emo- 
tions, all the powerful convictions, which impress the loyal 
people of this country as to the outrage, as to the wickedness, 
as to the perils of this great rebellion. Do you not recollect 
how, when the proclamation of Mr. Davis invited marauders 
to prey upon our commerce, from whatever quarter and from 
whatever motives — (patriotism and duty not being requisite 
before they would be received) — the cry of the wounded sensi- 
bilities of a great commercial people burst upon this whole 
scene of conflict ? What was there that as a nation we had 
more to be proud of, more to be glad for in our history, than 
our flag ? To think that in an early stage of what was claimed 
to be tirst a constitutional, and then a peaceful, and then a de- 
liberate political agitation and maintenance of right, this last 
extreme act, the arming of private persons against private 
property on the sea, was a])pealed to before even a force was 
drawn on the field on behalf of the United States of America! 
The proclamation of the President was but two days old when 
privateers were invited to rush to the standard. The indig- 
nation of the community, the sense of outrage and hatred was 
so severe and so strong, that at that time, it the sentiment of 
the people had been consulted, it would have found a true 
expression in what was asserted in the newspapers, in public 
speeches, in private conversations — that the duty of every 
merchantman and of every armed vessel of the country, which 
arrested any of these so-called privateers, under this new com- 
mission, without a nation and without authority, was, to treat 
them as pirates caught in the act, and execute them at the 
yard-arm by a summary justice. 

Well, I need not say to you, gentlemen, that I am sure you 
and I and all of us would have have had occasion to regret, 
in every sense, as wrong, as violent, as unnecessary, and, there- 
fore, as wholly unjustifiable, on the part of a powerful nation 
like ourselves, any such rash execution of the penalties of 
the law of nations, and of the law of the land, while 
our Government had power on the sea, had authority on the 
land, had Courts and laws and juries under its authority to 
inquire and look into the transacti(m. 

The public passions on this subject being all cool at this 



318 TRIAL OF THE OFFICERS AND CREW 

time, after an interval of four months or more from the arrest, 
we are here trying this case. Yet my learned friends can find 
complaint against the mercy of the Government and its jus- 
tice, that it brings any prosecution ; and great complaint is 
made before yon, without the least ground or cause, as it seems 
to me, that the prosecution is pressed in a time of war, when 
the sentiments of the community are supposed to be inflamed. 

Well, gentlemen, what is the duty of Government, when it 
has brought in prisoners arrested on the high seas, but to de- 
liver them promptly to the civil authorities, as was done in this 
case — and then, in the language of the Constitution, which se- 
cures the right to them, to give them a speedy and impartial trial ? 
That it is impartial, they all confess. How speedy is it? They 
say, they regret that it proceeds in time of war. Surely, our 
learned friends do not wish to be understood as having had de- 
nied to them in this Court any application which they have made 
for postponement. The promptness of the judicial and prosecut- 
ing authorities here had produced this indictment in the month 
of June, I believe, the very month in which the prisoners were 
arrested, or certainly early in July ; and then the Government 
was ready to proceed with the trial, so far as I am advised. But, 
at any rate, an application — a very proper and necessary appli- 
cation — was made by our learned friends, that the trial should 
be postponed till, I believe, the very day on which it was 
brought on. That application was not objected to, was acquiesced 
in, and the time was fixed, and no further suggestion was 
made that the prisoners desired further delay ; and, if the 
Government had undertaken to ask for further delay, on the 
ground of being unprepared, there was no fact to sustain any 
such application. If it was the wish of the prisoners, or for 
their convenience, that there should be further delay, it was 
for them to suggest it. But, being entitled by the Constitution 
to a speedy as well as an impartial trial, and the day being 
fixed by themselves on which they would be ready, and they 
being considered ready, and no difficulty or embarrassment in 
the way of proof having been suggested on the part of the 
Government, it seems to me very strange that this regret 
should be expressed, unless it should take that form of regret 
which all of us participate in, that the war is not over. That, 
I agree, is a subject of regret. But how there has ever been 
any pressure, or any — the least — exercise of authority adverse 
to their wishes in this matter, it is very difficult for me to un- 
derstand. 

Now, gentlemen, I approach a part of this discussion which 
I confess I would gladly decline. 1 have not the least objection 
— no one, I am sure, can feel the least objection — to the privi- 



OF THE SCHOONER SAVANNAH. 319 

lege or supposed duty of counsel, who are defending prisoners on 
a grave charge, — certainly not in a case which includes, as a pos- 
sible result, the penalty of their client's lives, — to go into all 
the inquiries, discussions and arguments, however extensive, 
varied, or remote, that can aifect the judgment of the Jury, 
properly or fairly, or that can rightly be invoked. But, I con- 
fess that, looking at the very interesting, able, extensive and 
numerous arguments, theories and illustrations, that have been 
presented in succession by, I think, in one form or another, 
seven counsel for these prisoners, as the introduction into a 
judicial forum, and before a Jury, of inquiries concerning 
the theories of Government, the course of politics, the occa- 
sion of strife on one side or the other, within the region of 
politics and the region of peace, in any portion of the great 
communities that composed this powerful nation — in that point 
of view, I aver, they seem to me very little inviting and 
instructive, as they certainly are extremely unusual in forensic 
discussions. Certainly, gentlemen of the Jury, we must con- 
ceive some starting point somewhere in the stability of human 
affairs, as they are entrusted to the control and defence of 
human Governments. But, in the very persistent and resolute 
views of the learned counsel upon this point — first on the right 
of secession as constitutional ; second, if not constitutional, as 
being supposed by somebody to be constitutional ; third, on 
the right of revolution as existing on the part of a people op- 
pressed, or deeming themselves oppressed, to try their strength 
in the overthrow of the subsisting Government ; fourth, on 
the right to press the discontents inside of civil war; and 
then finally and at last, that whoever thinks the Government 
oppresses him, or thinks that a better Government would suit 
his case, has not only the 'right to try the venture, but that, 
unsuccessful, or at any stage of the effort, his right becomes 
so complete that the Government must and should surrender at 
once and to every attempt — I see only what is equivalent to a 
subversion of Government, and to saying that the right of 
revolution, in substance and in fact, involves the right of Gov- 
ernment in the first place, and its duty in the second place, to 
surrender to the revolutionist, and to treat him as having over- 
thrown it in point of law, and in contemplation of its duty. 
That is a proposition which I cannot understand. 

Nevertheless, gentlemen, these subjects have been so ex- 
tensively opened, and in so many points attacks liave been 
made upon what seems to me not only the very vital structure 
and necessary support of this, our Government, but the very 
necessary and indispensable support of any Government what- 
ever, and we have been so distinctly challenged, both on the 
ground of an absolute right to overthrow this Government, when- 



320 TRIAL OF THE OFFICERS AND CREW 

ever any State thinTvs fit — and, next, upon the clear right, on 
general principles of human equity, of each State to raise itself 
against any Government with which it is dissatisfied — and 
upon the general right of conscience — as well as on tlie complete 
support by what has been assumed to have been the parallel 
case, on all those principles, of the conduct of the Colonies 
which became the United States of America and established 
our Government — that I shall find it necessary, in the discharge 
of my duty, to say something, however briefly, on that subject. 
Now, gentlemen, these are novel discussions in a Court of 
Justice, within the United States of America. "We have talked 
about the oppressions of other nations, and rejoiced in our ex- 
emption from all of them, under the free, and benignant, and 
powerful Government which was, by the favor of Providence, 
established by the wisdom, and courage, and virtue of our an- 
cestors. We had, for more than two generations, reposed un- 
der the shadow of our all-protecting Government, with the same 
conscious security as under the firmament of the heavens. We 
knew, to be sure, that for all that made life hopeful and valu- 
able — for all that made life possible — we depended upon the 
all-protecting power, and the continued favor of Divine Provi- 
dence. We knew, just as well, that, without civil society, with- 
out equal and benignant laws, without the administration of 
justice, without the maintenance of commerce, without a suit- 
able Government, without a powerful nationality^, all the mo- 
tives and springs of human exertion and labor would be dried 
up at their sourc*. But we felt no more secure in the Divine 
promise that " summer and winter, seed-time and harvest," 
should not cease, than we did in the permanent endurance of 
that great fabric established by the wisdom and the courage of 
a renowned ancestry, to be the habitation of liberty and justice 
for us and our children to every generation. We felt no solici- 
tude whatever that this great structure of our constituted lib- 
erties should pass away as a scroll, or its firm power crumble 
in the dust. But, by the actual circumstances of our situation^ 
— and, if not by them, certainly by the destructive theories 
which are presented for your consideration,^ — it becomes neces- 
sary for us, as citizens, and, in the judgment at least of the 
learned counsel, for these prisoners, for you, and for this learned 
Court, in the conduct of this trial, and in the disposition of the 
issue of "guilty" or " not guilty" as to these prisoners, to pay 
some attention to these considerations. If, in the order of 
this discussion, gentlemen, I should not seem to follow in 
any degree, or even to include by name, many of the prop- 
ositions, of the distinctions, and of the arguments which our 
learned friends have pressed against the whole solidity, the 
whole character, the whole permanence, the whole strength of 



OF THE SCHOONEK SAVANNAH. 321 

our Government, I yet think you will find that I have included 
the principal ideas they have advanced, and have commented 
upon the views that seem to us — at least so far as we think 
them to be at all connected with this case — suitable to be con- 
sidered. 

Now, gentlemen, let us start with this business where our 
friends, in their argument, where many of the philosophers, 
and partisans, and statesmen of the Southern people, have found 
many of their grounds of support. Let us start with this very 
subject of the American Revolution, with the condition that 
we were in, and with the place that we found ourselves raised 
to, among the nations of the earth, as the result of that great 
transaction in the affairs of men. What were we before the 
Revolution commenced ? Was any one of the original thirteen 
States out of which our nation was made, and which, previous 
to the Revolution, were Colonies of Great J3ritain — was any one 
of them an independent nation at the time they all slumbered 
under the protection of the British Crown ? Why, not only 
had they not the least pretension to be a nation, any of them, 
but they had scarcely the position of a thoroughly incorporated 
part of the great nation of England. Now, how did they stand 
towards the British power, and under what motives of dignity, 
and importance, and necessity did they undertake their sever- 
ance from the parent country ? With all their history of colo- 
nization, the settlement of their different charters, and the 
changes they went through, I will not-detain you. For gener- 
al purposes, we all know enough, and I, certainly not more 
than the rest of you. This, however, was their condition. The 
population were all subjects of the British Crown ; and they all 
had forms of local Government which they had derived from 
the British Crown ; and they claimed and possessed, as I sup- 
pose, all the civil and political rights of Englishmen. They 
were not subject to any despotic power, but claimed and pos- 
sessed that right to a share in the Government, which was the 
privilege of Englishmen, and under which they protected them- 
selves against the encroachment of the Crown. But, in Eng- 
land, as you know, the monarch was attended by his Houses of 
Parliament, and all the power of the Government was con- 
trolled by the people, through their representatives in the 
House of Commons. And how ? Why, because, although the 
King had prerogatives, executive authority, a vast degree of 
pomp and wealth, and of strength, yet the people, represented 
in the House of Commons, by controlling the question of taxa- 
tion, held all the wealth of the kingdom — the power of the 
purse, as it was described — and without supplies, without 
money for the army, for the navyj for all the purposes of Gov- 
ernment, what authority, actual and effective, had the Crown 
21 



322 TRIAL OF THE OFFICERS AND CREW 

of England ? These were the rights of Englishmen ; these 
made them a free people, not subject to despotic power. They 
cherished it and loved it. Now, what relation did these Colo- 
nies, becoming ofF-shoots from the great fabric of the national 
frame of England, bring with them, and assert, and enjoy here ? 
Why, the king was their king, just as he was the king of the 
jjeople M'hom they left in Enghmd, but they had their legisla- 
tures here, which made their laws for them in Massachusetts^ 
in Connecticut, in Virginia, in South Carolina, and in the rest 
of these provinces ; and among those laws, in the power of law- 
making, they had asserted, and possessed, and enjoyed the 
right of laying taxes for the expenses and charges of tlieir Gov- 
ernment. They formed no part of the Parliament of England, 
but, as the subjects of England within the four seas were obedi- 
ent to the king, and were represented in the Parliament that 
made laws for them, the Colonies of America were subject to 
the king, but had local legislatures, to pass laws, raise and 
levy taxes, and graduate the expenses and contributions which 
they would bear. 

Now, gentlemen, it is quite true that the local legislatures 
were subject to the revision, as to their statutes, to a certain 
extent, of the sovei-eign power of England. The king had 
the veto power — as he had the veto power over Acts of Par- 
liament — the power of revision — and other jjowers, as may 
have been the casual outgrowth of the forms of different char- 
ters. In an evil hour — as these Colonies, from being poor, 
despised, and feeble communities, gained a strength and num- 
bers that attracted the attention of the Crown of England, as 
important and productive communities, capable of being taxed 
— the Government undertook to assert, as the principle of the 
Constitution of England, that the king and Parliament, sitting 
in London, could tax as they pleased, when they pleased, and 
in the form, and on the subjects, and to the amount, they 
pleased, the free people of these Colonies. Now, you will 
understand, there was not an incidental, a casual, a limited 
subject of controversy, of right, of danger, but there was 
an attack upon the first princij^les of English liberty, which 
prevented the English people from being the subjects of a des- 
pot, and an attempt to make us subject to a despotic Gov- 
ernment, in which we took no share, and in which we had 
no control of the power of the purse. AVhat matter did it make 
to us that, instead of there being a despotic authority, in which 
we had no share or representation of vote or voice, exercised 
by the king alone, it was exercised by the king and Parlia- 
ment? They were both of them powers of Government that were 
away from us, and in M'hicli we had no share ; and we, then, fore- 
warned by the voices of the great statesmen whose sentiments 



OF THE SCHOONER SAVANNAH. 323 

have been read to yoii, saw in time that, whatever might be 
said or thought of the particular exercise of authority, the pro- 
position was that we were not entitled to the privilege and free- 
dom of Englishmen, but that the power was confined to those 
who resided within the four seas — within the islands that made 
up that Kingdom — and that we were provinces which their King 
and their Parliament governed. Therefore, you may call it a 
question of taxation, and my friend may call it " a question of 
three pence a j)ound on tea;" but it was the proposition that 
the power of the purse, in this country, resided in England. 
We had not been accustomed to it. We did not believe in it. 
And our first revolutionary act was to fight for our rights as 
Englishmen (subject to the King, whose power we admitted), 
and to assert the rights of our local legislature in the overthrow 
of this usurpation of Parliament. Now, of the course which 
we took before we resorted to the violence and vehemence of 
war, I shall have hereafter occasion to present you, very briefly 
and conclusively, a condensed recital ; but this notion, that we 
here claimed any right to rise up against a Government that was 
in accordance with our rights, and was such as we had made it, 
and as we enjoyed it, equally with all others over whom it was 
exercised — wliich lies at the bottom of the revolt in this coun- 
try — had not the least place, or the opportunity of a place, in 
our relations with England. We expected and desired, as the 
correspondence of Washington shows — as some of the observa- 
tions of Hamilton, I think, read in your presence by the learned 
counsel, show — as the records of history show — we expected to 
establish security for ourselves under the British Crown, and 
as a part of the British Empire, and to maintain the right of 
Englishmen, to wit, the right of legislation and taxation where 
■we were represented. But the parent Government, against the 
voice and counsels of such statesmen as Burke, and the warnings 
of such powerful champions of liberty as Chatham, undertook to 
insist, upon the extreme logic of their Constitution, that we 
were British subjects, and that the king and Parliament 
governed all British subjects; and they had a theory, I believe, 
that we were represented in Parliament, as one English jurist 
j)ut it, in the fact that all the grants in all the Colonies 
were, under the force of English law, " to have and to hold, as 
the Manor of East Greenwich," and that, as the Manor of 
East Greenwich was represented in Parliament, all this people 
were represented. But this did not suit our notions. The 
lawyers of this country, the Judges of this country, and many 
of the lawyers of England, as mere matter of strict legal right, 
held that the American view of the Constitution of England, 
and of the rights of Englishmen who enjoy it, was the true one. 
But, at any rate, it was not upon an irritation about public 



324: TKIAL OF THE OFFICEES AND CEEW 

sentiment ; nor was it upon the pressure of public taxes ; nor 
because we did not constitute a majority of Parliament; nor 
anything of that kind; but it was on clear criteria of whether 
we were slaves, as Hamilton presents it, or part of the 
free people of a Government. We, therefore, by degrees, and 
somewhat unconscious, perhaps, of our own enlightened pro- 
gress, but yet wisely, fortunately, prosperously, determined 
upon our independence, as the necessary means of securing 
those rights which were denied to us under the Constitution of 
our country. 

Now, there was not the least pretence of the right of a peo- 
ple to overthrow a Government because they so desire — which 
seems to be the proposition tiere — because they think they do 
not like it — and because there are some points or difficulties in its 
working they would like to have adjusted. No ; it was on the 
mere proposition that the working of the administration in En- 
gland was converting us into subjects, not of the Crown, with 
the rights of Englishmen, but subjects of the despotic power of 
Parliament and the king of England. Now, how did we go 
to work, and what was the result of that Kevolution ? In the 
first place, did we ever become thirteen nations ? Was Massa- 
chusetts a nation ? Was South Carolina a nation ? Did either 
of tliem ever declare its independence, or ever engage in a war, 
by itself and of itself, against England, to accomplish its inde- 
pendence? No, never; the first and preliminary step before 
independence was union. The circumstances of the Colonies, 
we may well believe, made it absolutely necesary that they 
should settle beforehand the question of whether they could 
combine themselves into one effectual, national force, to con- 
tend with England, before they undertook to fight her. It was 
pretty plain that Massachusetts could not conquer England, or 
its own independence, and that Virginia could not do so, and 
that the New England States alone could not do it, and that the 
Southern States alone could not do it. It was quite plain that 
New York, Pennsylvania and New Jersey, alone, could not do 
it ; and, therefore, in the very womb, as it were, and preceding 
our birth as a nation, we were articulated together into the 
frame of one people, one community, one nationality. Now, 
however imperfectly, and however clumsily, and however un- 
suitably we were first connected, and however necessary and 
serious the changes which substituted for that inchoate shape of 
nationality the complete, firm, noble and perfect structure 
which made us one people as the United States of America, 
yet you will find, in all the documents, and in all the history, 
that there was a United States of America, in some form rep- 
resented, before there was anything like a separation, on the 



OF THE SCHOONER SAVANNAH. 325 

part of any of the Colonies, from the parent country, except in 
these discontents, and these efforts at an assertion of our liber- 
ties, which had a local origin. 

The great part of the argument of my learned friend rests 
upon the fact that these States were nations, each one of them, 
once upon a time ; and that, having made themselves this Gov- 
ernment, they hav^e remained nations, in it and under it, ever 
since, subject only to the Confederate authority, in the terms 
of a certain instrument called a compact, and with the reserved 
right of nationality ready, at all times, to spring forth and man- 
ifest itself in complete separation of any one of the States from 
the rest. And I find, strangely enough, in the argument a& 
well of the promoters of these political movements at the South 
as in the voice of my learned friends who have commented on 
this subject, a reference to the early diplomacy of the United 
States, as indicative of the fact that they were separate and in- 
dependent communities — regarded as such by the contracting 
Powers into connection with whom they were brought by their 
treaties and conventions, and, more particularly, in the de- 
finitive treaty whereby their independence was recognized by 
Great Britain. Kow, if the Court please, both upon the point 
(if it can be called a point, connected with your judicial inqui- 
ry) that these Colonies were formed into a Union before they 
secured their national independence, and that there was no mo- 
ment of time wherein they were not included, either as united 
Colonies, under the parental protection of Great Britain, or as 
united in a struggling Provisional Government, or in the per- 
fect Government of the Confederation, and, finally, under the 
present Constitution — I apprehend there can be no doubt that 
our diplomacy, commencing, in 1778, with the Treaty of Al- 
liance with France, contains the same enumeration of States 
that is so much relied upon by the reasoners for independent 
nationality on the part of all the States. In the preamble to 
that Treaty, found at page 6 of the 8th volume of the Statutes 
at Large, the language was : " The Most Christian King and the 
United States of North America, to wit, New Hampshire, &c., 
having this day concluded," &c. The United States are here 
treated as a strictly single power, with whom his Most Christian 
Majesty comes into league; and the credentials or ratifications 
pursued the same form. The Treaty of Commerce with the same 
nation, made at the same time, follows the same idea; and the 
Treaty with the Netherlands, made in 1782, contains the same 
enumeration of the States, and speaks of each of the contracting 
parties as being " countries." The Convention with the Nether- 
lands, on page 50 of the same volume, and which was a part 
of the same diplomatic arrangement, and made at the same 
time, speaks, in Article 1, of the vessels of the " two nations." 



326 TRIAL OF THE OFFICERS AND CREW 

Now, the only argument of my learned friends, on the two 
treaties with Great Britain, of November, 1782, and September, 
1783, is, that they are an agreement between England and the 
thirteen nations ; and it is founded npon the fact, that the United 
States of America, after being described as such, are enumerated 
under a " viz," as being so many provinces. Now, the 5th and 6th 
articles of that Convention of 1782 with the Netherlands speak of 
" the vessels of war and privateers of one and of the other of the 
two nations." So that, pending the Revolution, we certainly, 
in the only acts of nationality that were possible for a contend- 
ing power, set ourselves forth as only one nation, and were so 
recognized. And the same views are derivable from the lan- 
guage of the Provisional Treaty with Great Britain of Novem- 
ber, 1782, and of the Definitive Treaty of Peace with Great 
Britain of September, 1783, which Ti'eaties are to be found at 
pages 54 and 80 of the same 8th volume. The Preamble to 
the latter Treaty recites : 

" It having pleased the Divine Providence to dispose the hearts of the 
most serene and most potent Prince George the Third, &c., and of the United 
States of America to forget all past misunderstandings and differences that 
have unhappily interrupted the good correspondence and friendship, which 
they mutually wish to restore ; and to establish such a beneficial and satis- 
factory intercourse between the two countries, &c." 

And then comes the 1st article, which is identical in lan- 
guage with the Treaty with the Netherlands, of 1782 : 

" His Britannic Majesty acknowledges the sai5 United States, viz., New 
Hampshire, &c., to be free, sovereign and independent States." 

Tlie United States had previously, in the Treaty, been spo- 
ken of as one country, and the language I have just quoted is 
only a statement of the provinces of which they were com- 
posed ; for, we all know, as matter of history, that there were 
other British provinces that might have joined in this Revolu- 
tion, and might, perhaps, have been included in the settlement 
of peace ; and this rendered it suitable and necessary that the 
provinces whose independence was acknowledged should be 
specifically described. But, in the 2d article, so far from the 
separateness of the nationalities with which the convention was 
made being at all recognized, that important article, which is 
the one of boundaries, gets onto bound the entire nation as one 
undivided and integral territory, without the least attention to 
the divisions between them. It may be very well to say that Eng- 
land was only concerned to have one continuous boundary, co- 
terminous to her own possessions, described, and that that was 
the object of the geographical bounding ; but the entire West- 
ern, Eastern, and Southern boundaries are gone through as those 



OF THE SCHOONER SAVANNAH. 327 

ot one integral nation. The 3d article speaks, again, of securing 
certain rights to the citizens or inhabitants of "both coun- 
tries." Now, that " country " and " nation," in the language 
of diplomacy, are descriptive, not of territory, in either case, 
but of the nationality, admits of no discussion ; and yet, I be- 
lieve that the most substantial of all the citations and of all 
the propositions from the documentary evidence of the Revolu- 
tion, which seeks to make out the fact that we came into being 
as thirteen nations, grows out of this British Treaty, which, in 
its preamble, takes notice of but one country, called the United 
States of America, and, then, in recognition of the United States 
of America, names the States under a " viz." — they being in- 
cluded in the single collective nation before mentioned as the 
United States. 

!Now, gentlemen, after the Revolution had completed our 
independence, how were we left as respects our rights, our in- 
terests, our hopes, and our prospects on this very subject of 
nationality ? Why, we were left in this condition — that we 
always had been accustomed to a parent or general Govern- 
ment, and to a local subordinate administration of our domestic 
affairs within the limits of our particular provinces. Under the 
good fortune, as well as the great wisdom which saw that this 
arrangement — a new one — quite a new one in the affairs of 
men — now that we were completely independent, and capa- 
ble of being masters of our whole Government, both local 
and general, admitted of none of those discontents and dangers 
which belonged to our being subject collectively to the 
dominion of a remote power beyond the seas — under the good 
fortune and great wisdom of that opportunity, we undertook 
and determined to establish, and had already established jDro- 
visionally, a complete Government, which we supposed would 
answer the purpose of having a general representation and 
protection of ourselves toward the world at large, and yet 
would limit the local power and authority, consistently with 
good and free Government, as respected populations homeo- 
geneous, and acquainted with each other, and with their own 
wants and the methods of supplying them. 

The Articles of Confederation, framed during the Revolu- 
tion, ratified at different times during its progress, and at its 
close, was a Government under which we subsisted — for how 
long? Until 1787 — but four years from the time that we had 
an independent nationality — we were satisfied with the im- 
perfect Union that our provisional Government had originated, 
and that we had shaped into somewhat more consistency under 
the Articles of Confederation. Why did we not stay under 
that? We were a feeble community. We had but little popu- 
lation, but little wealth. We had but few of the occasions of 



328 TKIAL OF THE OFFICERS AND CEEW 

discontent that belong to great, and wealthy, and populous 
States. But the fault, the difficulty, was, that there were, in 
that Confederation, too many features which our learned friends, 
their clients here, and theoretical teachers of theirs elsewhere, 
contend, make the distinctive character of the American Consti- 
tution, as finally developed and established. The difficulty was 
that, although we were apparently and intentionally a nation, as 
respected the rest of the world, and for all the purposes of com- 
mon interest and common protection and common development, 
yet this element of separate independency, and these views 
that the Government thus framed operated, not as a Govern- 
ment over individuals, but as a Government over local com- 
munities in an organized form, made its working imperfect, 
impossible, and the necessary occasion of dissension, and weak- 
ness, and hostility, and left it without the least power, except 
by continued force and war, to maintain nationality. 

Now, it was not because we were sovereigns, all of us, 
because we had departed from sovereignty. There was not 
the least right in any State to send an ambassador, or make a 
treaty, or have anything signed ; but the vice was, that the 
General Government had no power or authority, directly, on the 
citizens of the States, but had to send its mandates for contribu- 
tions to the common treasury, and its requirements for quotas, 
for the common army and the common navy, directly to thee 
States. Now, I tarry no longer on this than to say, that the 
brief experience of four years showed that it was an impossible 
proposition for a Government, that there should be in it even 
these imperfect, clipped and crippled independencies, that 
were made out of the original provinces and called States. In 
1787, the great Convention had its origin, and in 17S9 the 
adoption of the Constitution made something that was sup- 
posed to be, and entitled to be, and our citizens required to be, 
as completely difl'erent, on this question of double sovereignty, 
and divided allegiance, and equal right of the nation to re- 
quire and of a State to refuse, as was possible. If, indeed, 
instead of the Confederation having changed itself from an 
imperfect connection of States limited and reduced in sover- 
eignty, into a Government where the nation is the coequal and 
CO ordinate power (as our friends express it) of every State in 
it, why surely our brief experience of weakness and disorder, 
and of contempt, such as was visited upon us by the various 
nations with whom we had made treaties, that we could not 
fulfil them, found, in the practical wisdom of the intelligent 
American people, but a very imperfect and unsatisfactory solu- 
tion, if the theories o^ the learned counsel are correct, that 
these United States are, on the one part, a power, and on the 
other part, thirty-four diflferent powers, all sovereign, and the 



OF THE SCHOONEK SAVANNAH. 329 

two having complete rights of sovereignty, and dividing the 
allegiance of our citizens in every part of our territory. 

STow, the language of the Constitution is familiar to all of 
yon. That it embodies the principle of a General Government 
acting upon all the States, and upon you, and upon me, and 
upon every one in the United States ; that it has its own estab- 
lished Courts— its own mandate by which jurors are brought 
together — its own laws upon all the subjects that are attributed 
to its authority; that there is an establishment known as the 
Supreme Court, which, with the appropriate inferior establish- 
ments, controls and finally disposes of every question of law, 
and right, and political power, and political duty ; and that 
this adjusted system of one nation with distributed local power, 
is, in its working, adequate to all the varied occasions which 
human life developes — we all know. We have lived under it, 
we have prospered under it, we have been made a great nation, 
an united people, free, happy, and powerful. 

Kow, gentlemen, it is said — and several points in our history 
have been appealed to, as well as the disturbances that have 
torn our country for the last year — that this complete and inde- 
pendent sovereignty of the States has been recognized.^ Now, 
there have been several occasions on which this subject has 
come up. The first was under the administration of the first 
successor of General Washington — John Adams, — when the 
famous Yirginia and Kentucky resolutions had their origin. 
About these one of my learned friends gave you a very exten- 
sive discussion, and another frankly admitted that he could not 
understand the doctrine of the co-ordinate, equal sovereignty 
of two powers within the same State. On the subject of these 
Yirginia resolutions, and on the question of whether they were 
the recognized doctrines of this Government, I ask your atten- 
tion to but one consideration of the most conclusive character, 
and to be disposed of in the briefest possible space. The pro- 
position of the Yirginia resolutions was, that the States who 
are parties to the compact have the right and are in duty bound 
to interpose to arrest the progress of the evil (that is, when 
unconstitutional laws are passed), and to maintain, within 
their respective limits, the authority, rights, and liberties per- 
taining to them. That is to say, that where any law is passed 
by the Congress of the United States, ^\^ich the State of Yir- 
ginia, in its wise and independent judgment, pronounces to be 
in excess of the constitutional power, it is its right and duty to 
interpose. How? By secession? No. By rebellion? No. 
But by protecting and maintaining, within its territory, the 
authority, rights, and liberties pertaining to it. Now, these 
resolutions grew out of what? Certain laws, one called the 



330 TRIAL OF THE OFFICERS AND CREW 

" Alien " and the other the " Sedition " law, rendered necessary 
by the distnrbances communicated by the French revolution to 
this country, and which necessarily came within the doctrine 
of my friend, Mr. Larocque, that there is not the least right of 
secession when the laws are capable of being the subject of 
judicial investigation. Well, those laws were capable of being 
the subject of judicial investigation, and the resolutions did 
not claim the right of secession, but of nullification. My 
learned friend says that the doctrine of " secession " has no 
ground. 

But what was the fate of the " Yirginia resolutions " ? For 
Virginia did not pretend that she had all the wisdom, and 
virtue, and patriotism of the country within her borders. She 
sent these resolutions to every State in the Union, and desired 
the opinion of their legislatures and their governors on the sub- 
ject. Kentucky passed similar resolutions ; and Kentucky, you 
will notice, had just been made a State, in 1793 — an off -shoot 
from Yirginia ; and, as the gentleman has told you, Mr. Madi- 
son wrote the resolutions of Virginia, and Mr. Jefferson those of 
Kentucky. So that there was not any great independent sup- 
port, in either State, for the views, thus identical, and thus 
promulgated by these two Virginians. Their great patriot- 
ism, and wisdom, and intelligence, are a part of the inherit- 
ance we are all proud of. But, when the appeal was sent 
for concurrence to JSTew York, South Carolina, Georgia, Massa- 
chusetts, and the New England States, what was the result? 
"Why, Kentucky, in 1799, regrets that, of all the States, none, 
except Virginia, acquiesced in the doctrines ; and the answers 
of every one of the States that made response are contained 
in the record which also contains the Virginia and Kentucky 
resolutions. And that doctrine there exploded, and exploded 
forever, until its recurrence in the shape of nullification, in 
South Carolina, as part of the doctrines of this Constitution. 

We had another pressure on the subject of local dissatisfac- 
tion, in 1812 ; andthen the seat of discontent and heresy was New 
England. I do not contend, and never did contend, in any 
views I have taken of the history of affairs in this country, that 
the people of any portion of it have a riglit to set themselves 
in judgment as superiors over the people of any other portion. I 
never have had any difubt that, just as circumstances press on 
the interests of one community or another, just so are they likely 
to carry their theoretical opinions on the questions of the power 
of their Government and of their own riglits, and just so to ex- 
press themselves. So long as they confine themselves to resolu- 
tions and politics, to the hustings and to the elections, nobody 
xjares very much what their political theories are. But my learn- 
-ed friend Mr. Brady has taken the greatest satisfaction in show- 



OF THE SCHOONER SAVANNAH. 331 

ing, that this notion of the co-ordinate authority of the States 
with the nation, found its expression and adoption, during the 
war of 1812, in some of the States of New England, Well, 
gentlemen, I believe that all sober and sensible people aoree 
that, whether or not the New England States carried their her- 
esies to the extent of justifying the nullilication of a law, or the 
revocation of their assent to tiie Confederacy, and their with- 
drawal from the common Government, the doctrines there 
maintained were not suitable for the strength and the harmony, 
for the unity and the permanency, of the American Govern- 
ment. I believe that tlie condemnation of those principles 
that followed, from South Carolina, from Yirginia, from New 
York, and from other parts of the country, and the resistance 
which a large, and important, and intelligent, and influential 
portion of their own local community manifested, exterminated 
those ^leresies forever from the New England mind. 

Next, we come to 1832, and then, under the special instruc- 
tion and authority of a great Southern statesman, (Mr. Cal- 
houn,) whose acuteness and power of reasoning have certainly 
been scarcely, if at all, surpassed by any of our great men, the 
State of South Carolina undertook, not to secede, but to nullify; 
and yet Mr. Larocque says, that this pet doctrine of Mr. Cal- 
houn, — nullification, and nothing else, — is the ab.-urdest thing 
ever presented in this country ; and we are fortunate, I suppose, 
in not having wrecked our Union upon that doctrine. 

Now we come, next, to the doctrine of secession. Nulli- 
fication, rejected in 1798 by all the States, except Yirginia and 
Kentucky, and never revived by them, — nullification, rejected 
by the sober sense of the American People, — nullification was 
put down by the strong will of Jackson, in 1832, — having no 
place to disturb the strength and hopes and future of this coun- 
try. And what do we find is the proposition now put for- 
ward, as matter of law, to your Honors, to relieve armed and 
open war from the penalties of treason, and from the con- 
demnation of a lesser crime ? What is it, as unfolded here 
by the learned advocate (Mr. Larocque), with all his acute- 
ness, but so manifest an absurdity that its recognition by a 
lawyer, or an intelligent Jury, seems almost impossible ? It 
is this : This Union has its power, its authority, its laws. 
It acts directly upon all the individuals inside of every 
State, and they owe it allegiance as their Government. It is 
a Government which is limited, in the exercise of its power, to 
certain general and common objects, not interfering with the 
domestic affairs of any community. Within that same State 
there is a State government, framed into this General Govern- 
ment, to be certainly a part of it in its territories, a part of it 
in its population, a part of it in every organization, and every 



332 TEIAL OF THE OFFICERS AND CREW 

department of its Government. The whole body of its admin- 
istration of law, the Legislature and the Executive, are bound, 
by a particular oath, to sustain the Constitution of the United 
States. But, although it is true that the State Government 
has authority only where the United States Government has 
not, and that the United States have authority only where the 
State has not ; and although there is a written Constitution, 
which says what the line of separation is; and although there 
is a Supreme Court, which, when they come into collision, has 
authority to determine between them, and no case whatever, 
affecting the right or the conduct of any individual man, can 
be subtracted from its decision ; yet, when there comes a 
difference between the State and the General Government, the 
State has the moral right, and political right, to insist upon 
its view, and to maintain it by force of arms, and the General 
Government has the right to insist upon its view, a'hd to 
maintain it by force of arms. And then we have this poor pre- 
dicament for every citizen of that unlucky State, — that he is 
bound by allegiance, and under the penalty of treason, to 
follow each and both of these powers. And as, should he 
follow the State, the United States, if it be treason, would hang 
him, and, if he should follow the United States, the State, if it 
be treason, would hang him, this peculiar and whimsical result 
is produced, — that when the United States undertake to hang 
him for treason his answer is — " Why, if I had not done as I 
did, the State would have hanged me for treason, and, surely, I 
cannot be compelled to be hanged one way or the other — so, I 
must be protected from hanging, as to both ! " Well, that, I 
admit, is a sensible way to get out of the difiiculty, for the man 
and for the argument, if you can do it. But, it is a peculiar 
result, to start with two sovereigns, each of which has a right 
over the citizen, and to end with the citizen's right to choose 
which he shall serve, and to throw it in the face of offended 
majesty and justice — " Why, your statute of treason is repealed 
as against me, because the State, of which I am a subject, has 
counseled a particular course of conduct ! " 

Now, gentlemen, my learned friend qualifies even this 
theory — which probably must fall within the condemnation of 
the perhaps somewhat harsh and rough suggestion of Mr. 
Justice Grier, of a " political platitude" — by the suggestion 
that it only applies to questions where the United States can- 
not settle the controversy. And when my learned friend is 
looking around for an instance or an occasion that is likely to 
arise in human affairs, and in this nation, and in this time of 
ours, he is obliged to resort to the most extraordinary and ex- 
travagant proposition by way of illustration, and one that has, in 
itself, so many of the ingredients of remoteness and impossibili- 



OF THE SCHOONEK SAVANNAH. 338 

ty, that you can hardly think a Government deficient in not hav- 
ing provided for it. He says, first — suppose we have a Presi- 
dent, vp^ho is a Massachusetts man. Well, that is not very 
likely in the course of politics at present. And then, suppose 
that he is a bad man, — which, probably, my learned friends 
would think not as unlikely as I should wish it to be. And, 
then, suppose he should undertake to build up Boston, in its 
commerce, at the expense of New York ; and should put a 
blockading squadron outside New York, by mere force of 
caprice and tyfanny, without any law, and without any provision 
for the payment of the men of the Navy, or any commission or 
authority to any of them under which they could find they were 
protected for what they should do, in actually and effectually 
blockading our port. My learned friend acknowledges that 
this is a pretty violent sort of suggestion, and that no man in 
his senses would pretend to do sucli a thing, however bad he 
was, unless he could find a reasonable sort of pretext for it. 
Therefore he would, wisely and craftily, pretend that he had 
private advices that England was going to bombard New 
York. Now that is the practical case created^y my learned 
friend's ingenuity and reflection, as a contingency in which 
this contest by war between New York and the United 
States of America would be the only practical and sensible 
mode of protecting our commerce, and keeping you and me 
in the enjoyment of our rights as citizens of the State of 
New York. Well, to begin with, if we had a fleet off New 
York harbor, what is there that would require vessels to 
go to Boston instead of to Philadelphia, Baltimore, and other 
places that are open? In the second place, how long could 
we be at war, and how great an army could we raise 
in New York, to put in the field against the Federal Gov- 
ernment, before this pretence of private advices that Eng- 
land was going to bombard New York, would pass away, and 
the naked deformity of this bad Massachusetts President be 
exposed? Why, gentlemen, it is too true to need suggestion, 
that the wisdom which made this a Government over all indi- 
vidual citizens, and made every case of right and interest 
that touches the pocket and person of any man in it a question 
of judicial settlement, made it a Government which requires 
for the solution of none of the controversies within it, a resort 
to the last appeal — to battle, and the right of kings. 

. (Adjourned to 11 o'clock to-morrow.) 



334 TRIAL OF THE OFFICERS AND CREW 



SEVENTH DAY. 

Wednesday, October 30, 1861. 

The Court met at 11 o'clock A. M., -when Mr. Evarts re- 
sumed his argument. 

Gentlemen of the Jury : In resuming the course of my re- 
marks, already necessarily drawn to a very considerable 
length, I must recall to your attention the point that I had 
reached when the Court adjourned. I was speaking of this right 
of secession, as inconsistent with the frame, the purpose, and 
the occasion upon which the General Government was formed ; 
and of the illustration invented by my learned friend, and so 
improbable in its circumstances, of the position of the United 
States and one of the States of the Union, that could bring into 
play and justi^ this resort to armed opposition. I had said 
what I had to say, for the most part, as to the absurdity and 
improbability of the case supposed, and the inadequacy, the 
worthlessness, the chimerical nature of the remedy proposed. 
Now, you'will observe that, in the case supposed, the blockade of 
New York was to be without law, without authority, upon the 
mere capricious pretence of the President — a pretence so absurd 
that it could not stand the inspection of the people for a moment. 
What is the use of a pretence unless it is a cover for the act 
which it is intended to cloak? In such a case, the only proper, 
peaceful course would be to raise the question, which might be 
raised judicially, by attempting, in a peaceful manner, to pass 
the blockade, and throw the consequences upon the subordinate 
officers who attempted to execute the mere usurpation of the 
President, and, following the declaration of the Divine writings, 
that " wisdom is better than weapons of war," wait until the 
question could be disposed of under the Constitution of the Uni- 
ted States. For you will observe that, in the case supposed, there 
is no threat to the integrity, no threat to the authority, no threat 
to the existence of the State Government, or its Constitution; 
but an impeding of the trade or interests of the people of this 
city, and of the residents of all parts of the country interested 
in the commerce of New York, That port is not the port of 
New York alone. It is the port of the United States of Amer- 
ica, and all the communities in the Western country, who derive 
their supplies of foreign commodities through our internal nav- 
igation, when commerce has introduced them into this port, are 
just as much aflfected — just as much injured and oppressed — by 
this blockade of our great port and emporium, as are the people 



OF THE SCHOONER SAVANNAH. 335 

of the State of New York, So that, so far from its being a col- 
lision between the Government of the State of New York and 
the Government of the United States, it is a violent oppression, 
by usurpation — exposing to the highest penalties of the law the 
magistrate who has attempted it — exercised upon the people of 
the United States wherever residing, in the far West, in the sur- 
rounding States, in the whole country, who are interested in the 
maintenance of the commerce of this port. I need not say that 
the action of our institutions provides a ready solution for this 
difficulty. Two or three weeks must bring to the notice of 
every one the frivolity of the pretence of the Executive, that 
there was a threat of armed attack by a foreign nation. But if 
two or three weeks should bring the evidence that this was not an 
idle fear, and that, by information conveyed to the Government, 
this threat was substantial, and was followed by its attempted 
execution, — why, then, how absurd the proposition that, under 
the opinion of the State of New York, that this was but an idle 
pretext, for purposes of oppression, the State should fly into arms 
against the power exercised to protect the city from foreign at- 
tack ! The working of our affairs, which brings around the ses- 
sion of Congress at a time fixed by law — not at all determinable 
by the will of the President — exposes him to the grand inquest of 
the people, which sits upon his crime, and, by his presentation and 
trial before the great Court of Impeachment, in the course of one 
week — nay, in scarcely more than one day after its coming into 
session — both stamps this act as an usurpation, and dispossesses 
the magistrate who has violated the Constitution. And yet, rath- 
er than wait for this assertion of the power of the Constitution 
peacefully to depose the usurping magistrate, my friend must 
resort to this violent intervention of armed collision, that would 
keep us — in theory, at least — constantly maintaining our rights 
by the mere method of force, and would make of this Govern- 
ment — at tiie same time that they eulogize the founders of it, as 
the best and wisest of men — but an organization of armed hostili- 
ties, and its framers only the architects of an ever-impending 
ruin ! 

My learned friend, Mr. Brady, has asked my attention to 
the solution of a case wherein he thinks the State Govern- 
ment might be called upon to protect the rights of its citizens 
against the operation of an Act of Congress, by proposing 
this question : Suppose Congress should require that all the 
expenses of this great war, as we call it, should be paid by 
the State of New York, — what should we do in that case ? 
Nothing but hostilities are a solution for that case, it is sug- 
gested. Now, I would freely say to my learned friend, Mr. 
Brady, that if the General Government, by its law, should im- 
pose the whole taxation of the war upon the State of New 



336 TRIAL OF THE OFFICERS AND CREW 

York, I should advise the State of New York, or any citizen in* 
it, not to pay the taxes. That is the end of the matter. And I 
would like to know if there is any warlike process by which 
the General Government of the United States exacts its tribute 
of taxation, that could impose the whole amount on ]^ew York? 
As the process of taxation goes on, it is distributed through 
different channels, and presents itself as an actual and effective 
process, from the tax-gatherer to the tax-payer : " Give me so 
many dollars." And the tax-payer says : " There is no law for 
it, and I will not do it." Then the process of collection raises 
for consideration this inquiry — whether the tax is according to 
law, and according to the constitutional law of the United States 
of America. And this tribunal, formed to decide such ques- 
tions — formed to settle principles in single cases, that shall pro- 
tect against hostilities these great communities — disposes of the 
question. If the law is constitutional, then the tax is to be paid — 
if unconstitutional, then the tax is not collectable ; and the ques- 
tion is settled. But my learned friends, in their suggestions of 
what is a possible state of law that may arise in this country, 
forget the great distinction between our situation under the 
Federal Government and our situation as Colonies under the 
authority of the King and Parliament of England. It is the 
distinction between not being represented and being repre- 
sented. 

Why, my learned friends, in order to get the basis of a pos- 
sible suggestion of contrariety of duty and of interest between 
the Government of the United States and the people in these 
States, must overlook, and do overlook the fact that there is 
not a functionary in the Federal Government, from the Presi- 
dent down to the Houses of Congress, that does not derive his 
authority from the people, not of one State, not of any number 
of States, but of all the States. And thus standing, they are 
guardians and custodians, in their own interests — in their 
own knowledge of the interests of their own people — in their 
own knowledge that their place in the protection, power, and 
authority of the Government of the United States, proceeds by 
the favor and the approval of the local communitj^ in which 
they reside. So far, therefore, from anything in the arrange- 
ment or the working of these political systems being such as to 
make the Representatives or Senators that compose Congress 
the masters or the enemies of the local population of the States 
from which they respectively come, they come there under the 
authority of the local population which they represent, depend- 
ent upon it for their place and continuance, and not on the 
Federal Government. 

Away, then, with the notion, so foreign to our actual, con- 
stituted Government, that this Government of the United States 



OF THE SCHOONER SAVANNAH. 337 

of America is a Government that is extended over these States, 
with an origin, a power, a support independent of them, and that 
it contains in itself an arrangement, a principle, a composition 
that can by possibility excite or sustain these hostilities ! Why, 
every act of Congress must govern the whole Union. Every 
tax must, to be constitutional, be extended over the whole 
Union, and according to a fixed ratio of distribntion between 
the States, established by the Constitntion itself. Now, there- 
fore, when any particular interest, any particular occasion, any 
supposed necessity, any political motive, suggests a departure, 
on the part of the General Government, from a necessary ad- 
herence to this principle of the Constitution, yon will perceive 
that not only are the Eepresentatives and Senators who come 
from the State against which this exercise of power is at- 
tempted, interested to oppose, in their places in Congress, the 
violation of the Constitution, but the Eepresentatives and the 
Senators from every other State, in support of the rights of 
the local commnnities in which they reside, have the same in- 
terest and the same duty, and may be practically relied upon 
to exercise the same right, and authority, and opposition, in 
protection of their communities, against an application of the 
same principle, or an obedience to the same usurpation, on 
subsequent occasions, in reference to other questions that may 
arise. Therefore, my learned friends, when they are talking to 
you, theoretically or practically, about the opposition that may 
arise between co-ordinate and independent sovereignties, and 
would make the glorious Constitution of this Federal Govern- 
ment an instance of misshapen, and disjointed, and impractical 
inconsistencies, forget that the great basis of both of them rests 
in the people, and in the same people — eqnally interested, 
equally powerful, to restrain and to continue the movements of 
each, within the separate, constitutional rights of each. Now, 
nnquestionably, in vast communities, with great interests, di- 
verse and various, opinions may vary, and honest sentiments 
may produce the enactment of laws of Congress, which equally 
honest sentiments, on the part of local communities, expressed 
through the action of State legislation, may regard as incon- 
sistent with the Government and the Constitution of the United 
States, and with the rights of the States. But, for these pur- 
poses, for these occasions, an ample and complete theoretical 
and practical protection of the rights of all is found, in this abso- 
lute identity of the interests of the people and of their authority 
in both the form and the structure of their complex Govern- 
ment, and in the means provided by the Constitution itself for 
testing every question that touches the right, the interest, the 
liberty, the property, the freedom of any citizen, in all and any 
of these communities, before the Supreme Conrt of the United 
22 



338 TRIAL OF THE OFFICERS AND GREW 

States, Let us not be drawn into anj of these shadowy propo- 
sitions, that the whole people may be oppressed, and not a sin- 
gle individual in it be deprived of any personal riw;ht. When- 
ever the liberty of the citizen is abridged in respect to any 
personal right, the counsel concede that the Courts are open to 
him; and that is the theory, the wisdom, and the practical 
success of the American Constitution. 

Now, gentlemen of the Jury, but one word more on this 
speculative right of secession. It is founded, if at all, upon 
the theory, that the States, having been, anterior to the forma- 
tion of the Constitution, independent sovereignties, are, them- 
selves, the creators, and that the Constitution is the creature 
proceeding fri mi their power. I have said all I have to say 
about either the fact, or the result of the fact, if it be one, of 
the existence of these antecedent, complete national sovereign- 
ties on the part of any of the original States. But, will my 
learned friends tell me how this theory of theirs, in respect to 
the original thirteen States, has any application to the States, 
now quite outnumbering the original thirteen, which have, 
since the Constitution was formed, entered into the Government 
of this our territory, this our people? Out of thirty-four 
States, eleven have derived their existence, their permission to 
exist, their territory, their power to make a Constitution, from 
the General Government itself, out of whose territory — either 
acquired originally by the wealth or conquest of the Federal 
Government, or derived directly or indirectly through the 
cession or partition or separation of the original Colonies — 
they have sprung into existence. Of these eleven allied 
and confederate States, but four came from the stock of the 
original thirteen, and seven derived their whole power and 
authority from the permission of the Constitution of the United 
States, and have sprung into existence, with the breath of 
their lives breathed into them through the Federal Govern- 
pient. When the State of Louisiana talks of its right to secede 
by reason of its sovereignty, by reason of its being one of the 
creators of the Federal Government, and of the Federal Con- 
stitution — one of the actors in the principles of tlie American 
Revolution, and in the conquest of our liberties from the Eng- 
lish power — we may well lift our hands in surprise at the arro- 
gance of such a suggestion. Why, what was Louisiana, in all 
her territory, at the time of the great transaction of the Federal 
Revolution, and for a long time afterwards, but a province of 
Spain, first, and afterwards of France? How did her terri- 
tory — the land upon which her population and her property 
rest — come to be a part of our territory, and to give support to 
a State government, and to State interests ? Why, by its ac- 
quisition, under the wise policy of Mr. Jefferson, early in this 



OF THE SCHOONER 8AVA1TNAH. 339 

century, upon the opportunity offered, by the necessity or policy 
of the Emperor Napoleon, for its purchase, by money, as you 
would buy a ship, or a strip of land to build a fort on. Coming 
thus to the United States, by its purchase, how did Louisiana 
come to be set apart, carved out of the immense territory 
comprehended under the name of Louisiana, but by lines of 
division and concession of power, proceeding from the Gov- 
ernment of the United States? And why did we purchase it? 
We purchased it preliminarily, not so much to seize the oppor- 
tunity for excluding from a foothold on this Continent a great 
foreign Power, which, although its teiritory here was waste 
and uninhabited, had the legal right to till it, and might, in the 
course of time, fill it, with a population hostile in interests to 
our own,— =-not so much for this remote contingency, as to 
meet the actual and pressing necessity, on the part of the 
population that was beginning to fill up the left or eastern 
bank of the Mississippi, from its source to near its mouth, 
that they should have the mouth of the Mississippi also witliin 
their territory, governed by the same laws and under the same 
Government. And now, forsooth, the money and the policy 
of the United States having acquired this territory, and con- 
ceded the political rights contained in the Constitution of 
Louisiana, we are to justify the secession of the territory of 
Louisiana, carrying the mouth of the Mississippi with her, on 
the theory that she was one of the original sovereignties, and 
one of the creators of the Constitution of the United States! 
Well, gentlemen, how are our learned friends to escape from 
this dilemma ? Are they to say that our constituted Govern- 
ment, complex, composed of State and of Federal power, has 
two sets of State and Federal relations within it, to wit, that 
which existed between the General Government and the thir- 
teen sovereign, original States, and that which exists between 
the Federal Government and the other twenty-one States of the 
Union ? Is it to follow, from this severance, that these original 
Colonies, declaring their independence — South Carolina, North 
Carolina, Virginia and Geoigia — are to draw back to them- 

-I'll' 

selves the portions of their original territory that have smce, 
under the authoiity of the Constitution, been formed into 
separate communities? Our Constitution was made by and 
between the States, and the people of the States — not for 
themselves alone — not limited to existing territory, and arranged 
State and Provincial Governments — but made as a Govern- 
ment, and made with principles in respect to Government that 
should admit of its extension by purchase, by conquest, by 
all the means that could bring accretion to a people in terri- 
tory and in strength, and that should be, in its principles, a 



340 TRIAL OF THE OFFICERS AND CREW 

form of Government applicable to and sufficient for the old 
and the new States, and the old and the new population. I 
need hut refer to the later instances, where, by purchase, we 
acqnired Florida, also one of the seceded States, and where, by 
our armies, we gained the western coast of the Pacific. Are 
these the relations into which the power, and blood, and 
treasure of this Government bring it, in respect to the new 
commnnities and new States which, nnder its protection, and 
from its conceded power, have derived their very existence ? 
Why, gentlemen, our Government is said, by those who com- 
plain of it, or who expose what they regard as its difficulties, 
to have one element of weakness in it, to wit, the possibility of 
discord between the State and the Federal authorities. But, if 
yon adopt the principle, that there is one set of rnles, one set 
of rights, between the Federal Government and the original 
States that formed the Union, and another set of rules between 
the Federal Government and the new States, I would like to 
know what becomes of the provision of the Constitution, that 
the new States may be admitted on the same footing with the 
old ? What becomes of the harmony and accord among the 
local Governments of this great nation, which we call State 
Governments, if there be this superiority, in every political 
sense, on the part of the old States, and this absolute infe- 
riority and subjection on the part of the new ? 

And now, gentlemen, having done with this doctrine of se- 
cession, as ntterly inconsistent with the theory of our Govern- 
ment, and utterly unimportant, as a practical right, for any snp- 
posable or even imaginable case that may be suggested, I come 
to consider the question of the right of revolution. I have 
shown to yon upon what principles, and upon what substantial 
question, between being subjects as slaves, or being partici- 
pants in the British Government, our Colonies attempted and 
achieved their independence. As I have said to you, a very 
brief experience showed that they needed, to meet the exigen- 
cies of their situation, the establishment of a Government that 
should be in accordance with the wishes and spirit of the peo- 
ple, in regard of freedom, and yet should be of such strength, 
and such unity, as would admit of prosperity being enjoyed 
under it, and of its name and power being established among the 
nations of the earth. Now, without going into the theories of 
Government, and of the rights ot the people, and of the rights of 
the rulers, to any great extent, we all know that there has been 
every variety of experiment tried, in the course of human 
affairs, between the great extreme alluded to by my learned 
friend (Mr. Brady) of the slavery of Egyptians to their king — the 
extreme instance of an entire population scarcely lifted above the 



OF THE SCHOONER SAVANNAH. 341 

brutes in their absolute subjection to the tyranny of a ruler, so 
that the life, and the soul, and the sweat, and the blood of a 
whole generation of men are consumed in the task of build- 
ing a mausoleum as the grave of a king — and the later efforts 
of our race, culminating in the happy success of our own form 
of Government, to establish, on foundations .where liberty 
and law find equal support, the princij^le of Government, 
that Government is by, and for, and from all the people — that 
the rulers, instead of being their masters and their owners, are 
their agents and their servants — and that the greatest good of 
the greatest number is the plain, practical and equal rule which, 
by gift from our Creator, we enjoy. 

Now this, you will observe, is a question which readily re- 
ceives our acceptance. But the great problem in reference to 
the freedom of a people, in the establishment of their Govern- 
ment, presents itself in this wise : The people, in order to main- 
tain their freedom, must be masters of their Government, so 
that the Government may not be too strong in its arrangement 
of power, to overmaster the people ; but yet, the Government 
must be strong enough to maintain and protect the independ- 
ence of the nation against the aggressions, the usurpations, and 
the oppressions of foreign nations. Here you have a difficulty 
raised at once. You expose either the freedom of the nation, 
by making the Government too strong for the preservation of 
individual independence, or you expose its existence, by making 
it too weak to maintain itself against the passions, interests and 
power of neighboring nations. If you have a large nation — 
counting its population by many millions, and the circumfer- 
ence of its territory by thousands of miles — how can you ar- 
range the strength of Government, so that it shall not, in the 
interests of human passions, grow too strong for the liberties of 
the people ? And if, abandoning in despair that effort and that 
hope, you circumscribe the limits of your territory, and reduce 
your population within a narrow range, how can you have a 
Government and a nation strong enough to maintain itself in 
the contests of the great family of nations, impelled and urged 
by interests and passions ? 

Here is the first peril, which has never been successfully 
met and disposed of in any of the forms of Government that 
have been known in the history of mankind, until, at least, our 
solution of it was attempted, and unless it has succeeded and 
can maintain itself. But, again, this business of self-govern- 
ment by a people has but one practical and sensible spirit and 
object. The object of free Government is, that the people, 
as individuals, may, with security, pursue their own happiness. 
We do not tolerate the theory that all the people constituting 
.the nation are absorbed into the national growth and life. The 



34:2 TRIAL OF THE OFFICERS AND CREW 

reason why we want a free Government is, that we may he hap- 
py under it, and pursue our own activities according to our 
nature and our faculties. But, you will see, at once, that it is 
of the essence of being able to pursue our own interests under 
the Government under which we live, that we can do so ac- 
cording to our own notions of what they are, or the notions of 
those who are intelligently informed of, participate in, and sym- 
pathize with, those "interests. Therefore, it seems necessary 
that all of the every-day rights of property, of social arrange- 
ments, of marriage, of contracts — everything that makes up the 
life of a social community — shall be under the control, not of a 
remote or distant authority, but of one that is limited to, and 
derives its ideas and principles from, a local community. 

Now, how can this be in a large nation — in a nation of 
thirty millions, distributed over a zone of the earth? How are 
we to get along in New York, and how are others to get along 
in South Carolina, and others in New England, in the every- 
day arrangements that proceed from Government, and affect 
the prosperity, the Treedom, the independence, the satisfaction 
of the community with the condition in which it lives?' 
How can we get along, if all these minute and every-day 
arrangements are to proceed from a Government which has to 
deal with the diverse opinions, the diverse sentiments, the 
diverse interests, of so extensive a nation? But if, fleeing 
from this peril, you say that you may reduce your nation, 
you fall into another difficulty. The advanced civilization 
of the present day requires, for our commercial activity, for 
our enjoyment of the comforts and luxuries of life, that the 
whole globe shall be ransacked, and that the power of the na- 
tion which we recognize as our superior shall be able to protect 
our citizens in their enterprises, in their activities, in their ob- 
jects, all over the world. How can a little nation, made up of 
Massachusetts, or made up of South Carolina, have a flag and 
a power which can protect its commerce in the East Indies and 
in the Southern Ocean? Again — we find that nations, unless 
they are separated by wide barriers, necessarily, in the course 
of human affairs, come into collision ; and, as I have shown to 
you, the only arbitrament for their settlement is war. But war 
is a scourge — an unmitigated scourge — so long as it lasts, and 
in itself considered. But for objects which make it meritori- 
ous and useful, it is a scourge never to be tolerated. It puts 
in abeyance all individual rights, interests, and schemes, until 
the great controversy is settled. 

If, then, we are a small nation, surrounded on all sides by 
other nations, with no natural barriers, with competing inter- 
ests, with occasions of strife and collision on all sides, how can 
we escape war, as a necessary result of that miserable situa- 



OF THE SCHOONER SAVANNAH. 343 

tion ? But war strengthens the power of Government, weakens 
the power of the individual, and establishes maxims and creates 
forces, that go to increase the weight and the power of Gov- 
ernment, and to weaken the rights of the people. Then, we 
see til at, to escape war, we must either establish a great nation, 
which occupies an extent of territory, and has a fund of power 
sufficient to protect itself against border strifes, and against the 
ambition, the envy, the hatred of neighbors ; or else one which, 
being small, is exposed to war from abroad to subjugate it, or 
to the greater peril to its own liberties, of war made by its own 
Government, thus establishing principles and introducing 
interests which are inconsistent with liberty. 

I have thus ventured, gentlemen, to lay before you some 
of these general principles, because, in the course of the argu- 
ments of my learned friends, as well as in many of the discus- 
sions before the public mind, it seems to be considered that 
the ties, the affections and the interests, which oblige us to the 
maintenance of this Government of ours, tind their support 
and proper strength and nourishment only in the sentiments of 
patriotism and duty, because it happens to be our own Govern- 
ment ; and that, when the considerations of force or of feeling 
which bring a people to submit to a surrender of their Govern- 
ment, or to a successful conquest of a part of their territory, 
or to a wresting of a part of their people from the control of 
the Government, shall be brought to bear upon us, we shall be, 
in our loss and our surrender, only suffering what other nations 
have been called upon to lose and to surrender, and that it 
will be but a change in the actual condition of the country 
and its territory. But you will perceive that, by the superior 
fortune which attended our introduction into the family of na- 
tions, and by the great wisdom, forecast, and courage of our 
ancestors, we avoided, at the outset, all the difficulties between 
a large territory and a numerous population on the one hand, 
and a small territory and a reduced population on the other 
hand, and all those opposing dangers of the Government be- 
ing either too weak to protect the nation, or too strong, and 
thus oppressive of the people, by a distribution of powers and 
authorities, novel in the affairs of men, dependent on experi- 
ment, and to receive its final fate as the result of that experi- 
ment. We went on this view — that these feeble Colonies 
bad not, each in itself, the life and strength of a nation ; and, 
yet, these feeble Colonies, and their poor and sparse popula- 
tion, were nourished on a love of liberty and self-government. 
These sentiments had carried them through a successful war 
against one of the great powers of the earth. They were not 
to surrender that for which they had been fighting to any 
scheme, to any theory of a great, consolidated nation, the Gov- 



344 TEIAL OF THE OFFICERS AND OEEW 

ernment of which should subdue the people and re-iotroduce 
the old fashion in human affairs — that the pecple were made for 
the rulers, and not the rulers by and for the people. Tliey 
undertook to meet, they did meet, this difficult dilemma in the 
constitution of Government, by separating the great fund of 
powei', and reposing it in two distinct organizations. They 
reserved to the local communities the control of their domestic 
affairs, and attributed the maintenance and preservation of 
them to the State governments. They undertook to collect 
and deposit, under the form of a written Constitution, with the 
general Government, all those larger and common interests 
which enter into the conception and practical establishment of 
a distinct nation among the nations of the earth, and determ- 
ined that they would have a central powder which should be 
adequate, by drawing its resources from the patriotism, from 
the duty, from the wealth, from the numbers, of a great nation, 
to represent them in peace and in war, — a nation that could 
protect the interests, encourage the activities, and maintain the 
develoimient of its people, in spite of the opposing interests or 
the envious or hostile attacks of any nation. They determined, 
that this great Government, thus furnished with this range of 
authority and this extent of power, should not have anything 
to do with the every-day institutions, operations and social ar- 
rangements of the community into which the vast population 
and territory of the nation were distributed. They determined 
that the people of Massachusetts, the people of New York, and 
the people of South Carolina, each of them, should have their 
own laws about agriculture, about internal trade, about mar- 
riage, about apprenticeship, about slavery, about religion, about 
schools, about all the every-day pulsations of individual life 
and happiness, controlled by communities that moved with the 
same pulsations, obeyed the same instincts, and were animated 
by the same purposes. And, as this latter class of authority 
contains in itself the principal means of oppression by a Gov- 
ernment, and is the principal point where oppression is to be 
feared by a people, they had thus robbed the new system of all 
the dangers which attend the too extensive powers of 
a Government. They divided the fund of power, to prevent a 
great concentration and a great consolidation of the army of 
magistrates and officers of the law and of the Government which 
would have been combined by a united and consolidated 
authority, having jurisdiction of all the purposes of Govern- 
ment, of all the interests of citizens, and of the entire population 
and entire territory in these respects. They thus made a 
Government, complex in its arrangements, which met those 
opposing difficulties, inherent in human affairs, that make the 
distinction between free Governments and oppressive Govern- 



OF THE SCHOONER SAVANNAH. 345 

ments. They preserved tlie people in their enjoyment and con- 
trol of all the local matters entering into their every-day life, 
and yet gave them an establishment, sprioging from the 
same interests and controlled by the same people, which 
has sustained and protected us in our relations to the family 
of nations on the high seas and in the remote corners of the 
world. 

Now, this is the scheme, and this is the purpose, with which 
this Government was formed ; and you will observe that there 
is contained in it this separation, and this distribution. And 
our learned friends, who have argued before you respecting 
this theory, and this arrangement and practice of the power of 
a Government, as inconsistent with the interests and the freedom 
of the peoj)le, have substantially said to you that it was a whim- 
sical contrivance, that it was an impossible arrangement of 
inconsistent principles, and that we must go back to a simple 
Government composed of one of the States, or of a similar 
arrangement of territory and people, which would make each 
of us a weak and contemptible power in the family of nations — 
or we must go back to the old consolidation of power, such 
as is represented by the frame of France or England in its 
Government, or, more distinctly, more absolutely, and more 
likely to be the case, for so vast a territory and so extensive a 
population as ours, to the simple notion of Russian Au- 
tocracy. 

That, then, being the object, and that the character, of our 
institutions, and this right of secession not being provided for, or 
imagined, or tolerated in the scheme, let us look at the 
right of revolution, as justifying an attempt to overthrow the 
Government ; and let us look at the occasions of revolution, 
which are pretended here, as giving a sujDport, before the world, 
in the forum of conscience, and in the judgment of mankind, for 
the exercise of that right. 

And first, let me ask you whether, in all the citations from 
the great men of the Revolution, and in the later stages of our 
history, any opinion has been cited which has condemned this 
scheme, as unsuitable and insufficient for the freedom and 
happiness of the people, if it can be successful? I think 
not. The whole history of the country is full of records of 
the approval, of the support, of the admiration, of the 
reverent language which our people at large, and the great 
leaders of public opinion — the great statesmen of the country — 
have spoken of this system of Government. Let me ask your 
attention to but two encomiums upon it, as represented by that 
central idea of a great nation, and yet a divided and local ad- 
ministration of popular interests — to wit, one in the first stage 
of its adoption, before its ratification by the people was com- 



346 TRIAL OF THE OFFICEKS AJSTD CREW 

plete ; and the other, a speech made at the very eve of, if not 
in the very smoke of, this hostile dissolution of it. 

Mr. Plnckney, of South Carolina, who had been one of the 
delegates from that State in the National Convention, and had 
co-operated with the Northern statesmen, and with the great 
men of Virginia, in forming the Government as it was, in 
urging on the Convention of South Carolina the adoption of 
the Constitution, and its ratification, said : 

" To the Union we will look up as the temple of our freedom, — a temple 
founded in the aflfections and supported by the virtue of the people. Here 
we will pour out our gratitude to the Author of all good, for suffering us to 
participate in the rights of a people who govern themselves. Is there, at this 
moment, a nation on the earth which enjoys this right, where the true princi- 
ples of representation are understood and practised, and where all authority 
flows from, and returns at stated periods to, the people ? I answer, there is 
not. Can a Government be said to be free where those do not exist ? It 
cannot. On what depends the enjoyment of those rare, inestimable rights? 
On the firmness and on the power of the Union to protect and defend 
them." 

Had we anything from that great patriot and statesman of 
this right of secession, or independence of a State, as an im- 
portant or a useful element in securing these rare, these unheard 
of, these inestimable privileges of Government, which the 
Author of all good had suffered the people of South Carolina 
to participate in? No — they depended "on the firmness and 
on the power of the Union to protect and defend tiiem." Mr. 
Pinckney goes on to say : 

" To the philosophic mind, how new and awful an instance do the United 
States at present exhibit to the people of the world ! They exhibit, sir, the 
first instance of a people who, being thus dissatisfied with their Government, 
unattacked by a foreign force and undisturbed by domestic uneasiness, coolly 
and deliberately resort to the virtue and good sense of the country for a cor- 
rection of their public errors." 

That is, for the abandonment of the weakness and the 
danger of the imperfect Confederation, and the adoption of the 
constitutional and formal establishment of Federal power. Mr. 
Pinckney goes on to say : 

" It must be obvious that, without a superintending Government, it is im- 
possible the liberties of this country can long be secure. Single and uncon- 
nected, how weak and contemptible are the largest of our States ! how unable 
to protect themselves from external or domestic insult ! how incompetent, to 
national purposes, would even the present Union be ! how liable to intestine 
war and confusion ! how little able to secure the blessings of peace ! Let us, 
therefore, be careful in strengthening the Union. Let us remember we are 
bounded by vigilant and attentive neighbors " — (and now Europe is within 
ten days, and they are near neighbors) — " who view with a jealous eye our 
rights to empire." 



OF THE SCHOONER SAVANNAH. 34:7 

Pursuing my design of limiting my citations of the opinions 
of public men to those who have received honor from, and con- 
ferred honor on, tliat portion of our country and those of our 
countrymen now engaged in this strife with the General Gov- 
ernment, let me ask your attention to a speech delivered by Mr. 
Stephens, now the Vice-President of the so-called Confederate 
States, on the very eve of, and protesting against, this effort 
to dissolve the Union. I read from page 220 and subsequent 
pages of the documents that have been the subject of reference 
heretofore : 

" The first question that presents itself" — (says Mr. Stephens to the assem- 
bled Legislature of Georgia, of which he was npt a member, but which, as an 
eminent and leading public man, he had been invited to address) — "is, shall the 
people of the South secede from the Union in consequence of the election of 
Mr. Lincoln to the Presidency of the United States ? My countrymen, / tell 
you frankly, candidly, and earnestly, that I do not think that they ought. In 
my judgment, the election of no man, constitutionally elected to that high 
office, is sufficient cause for any State to separate from the Union. It ought 
to stand by and aid still in maintaining the Constitution of the country. To 
make a point of resistance to the Government — to withdraw from it because a 
man has been constitutionally elected — puts us in the wrong. We are pledged to 
maintain the Constitution. Many of us have sworn to support it. 

" But it is said Mr. Lincoln's policy and principles are against the Consti- 
tution, and that if he carries them out it will be destructive of our rights. Let 
us not anticipate a threatened evil. If he violates the Constitution, then will 
come our time to act. Do not let us break it because, forsooth, he may. If 
he does, that is the time for us to strike. * * My countrymen, I am not of 
those who believe this Union has been a curse up to this time. True men — 
men of integrity — entertain different views from me on this subject. I do not 
question their right to do so ; I would not impugn their motives in so doing. 
Nor will I undertake to say that this Government of our fathers is perfect. 
There is nothing perfect in this world, of a human origin. Nothing connected 
with human nature, from man himself to any of his works. You may select 
the wisest and best men for your Judges, and yet how many defects are there 
in the administration of justice ? You may select the wisest and best men for 
your legislators, and yet how many defects are apparent in your laws ? And 
it is so in our Government. 

" But that this Government of our fathers, with all its defects, comes 
nearer the objects of all good Governments than any on the face of the earth, 
is my settled conviction. Contrast it now with any on the face of the earth." 
["England," said Mr. Toombs.] " England, my friend says. Well, that is the 
next best, I grant ; but I think we have improved upon England. Statesmen 
tried their apprentice hand on the Government of England, and then ours 
was made. Ours sprung from that, avoiding many of its defects, taking most 
of the good and leaving out many of its errors, and, from the whole, construct- 
ing and building up this model Republic — the best which the history of the 
world gives any account of. 

" Compare, my friends, this Government with that of Spain, Mexico, the 
South American Republics, Germany, Ireland — are there any sons of that 
down-trodden nation here to-night? — Prussia, or, if you travel further east, 
to Turkey or China. Where will you go, following the sun in his circuit 
round our globe, to find a Government that better protects the liberties of its 



34:8 TRIAL OF THE OFFICERS AND CREW 

people, and secures to them the blessings we enjoy ? I think that one of the 
evils that beset us is a surfeit of liberty, an exuberance of the priceless 
blessings for which we are ungrateful. * * * m= * * 

" When I look around and see our prosperity in every thing — agricul- 
ture, commerce, art, science, and every department of education, physical 
and mental, as well as moral advancement, and our colleges — I think, in the 
face of such an exhibition, if we can, without the loss of power, or any 
essential right or interest, remain in the Union, it is our duty to ourselves 
and to posterity to — let us not too readily yield to this temptation — do so. 
Our first parents, the great progenitors of the human race, were not without 
a like temptation when in the garden of Eden. They were led to believe 
that their condition would be bettered — that their eyes would be opened — 
and that they would become as gods. They in an evil hour yielded. Instead 
of becoming gods, they only saw their own nakedness. 

" I look upon this country, with our institutions, as the Eden of the world, 
the paradise of the Universe. It may be that out of it we may become 
greater and more prosperous, but I am candid and sincere in telling you 
that I fear if we rashly evince passion, and, without suflBcient cause, shall 
take that step, that instead of becoming greater or more peaceful, prosperous 
and happy — instead of becoming gods — we will become demons, and, at no 
distant day, commence cutting one another's throats." 

Still speaking of our Government, lie says : 

" Thus far, it is a noble example, worthy of imitation. The gentleman 
(Mr. Cobb) the other night said it had proven a failure. A failure in what? 
In growth ? Look at our expanse in national power. Look at our pop- 
ulation and increase in all that makes a people great. A failure ? Why, we 
are the admiration of the civilized world, and present the brightest hopes of 
mankind. 

"Some of our public men have failed in their aspirations ; that is true, 
and from that comes a great part of our troubles. 

*' No, there is no failure of this Government yet. We have made great 
advancement under the Constitution, and I cannot but hope that we shall 
advance higher still. Let us be true to our cause." 

Now, wherein is it that this Government deserves these 
encomiums, which come from the intelligent and profound 
wisdom of statesmen, and gush spontaneously from the un- 
learned hearts of the masses of the peopile ? Why, it is pre- 
cisely in this point, of its not being a consolidated Govern- 
ment, and of its not being a narrow, and feeble, and weak 
community and Government, Indeed, I may be permitted to 
say that 1 once heard, from the lips of Mr. Calhoun himself, 
this recognition, both of the good fortune of this country in 
possessing such a Government, and of the principal sources to 
which the gratitude of a nation should attribute that good for- 
tune. I heard him once say, that it was to the wisdom, in the 
great Convention, of the delegates from the State of Connecti- 
cut, and of Judge Patterson, a delegate from the State of New 
Jersey, that we owed the fact that this Government was what it 
was, the best Government in the world, a confederated Govern- 
ment, and not what it would have been — and, apparently, would 
have been but for those statesmen — the worst Government in 



OF THE SCHOONER SAVANNAH. 349 

the world — a consolidated Government. These statesmen, he 
said, were wiser for the South than the Sonth was for herself. 

I need not say to yon, gentlemen that, if all this encomium 
on the great fabric of our Government is brought to naught, 
and is made nonsense by the proposition that, although thus 
praised and thus admired, it contains within itself the princi- 
ple, the right, the duty of being torn to pieces, whenever a 
fragment of its people shall be discontented and desire its de- 
struction, then all this encomium comes but as sounding brass 
and a tinkling cymbal ; and the glory of our ancestors, Wash- 
ington, and Madison, and Jefferson, and Adams — the glory of 
their successors, Webster, and Clay, and Wright, and even 
Calhoun — for he was no votary of this nonsense of secession — 
passes away, and their fame grows visibly paler, and the 
watchful eye of the English monarchy looks on for the bitter 
fruits to be reaped by us for our own destruction, and as an 
example to the world — the bitter fruits of the principle of rev- 
olution and of the right of self-government which we dared to 
assert against her perfect control. Pointing to our exhibition 
of an actual concourse of armies, she will say — " It is in the 
dragon's teeth, in the right of rebellion against the monarchy 
of fengland, that these armed hosts have found their seed and 
sprung up on your soil." 

Now, gentlemen, such is our Government, such is its benefi- 
cence, such is its adaptation, and such are its successes. Look 
at its successes. Not three-quarters of a century have passed 
away since the adoption of its Constitution, and now it rules 
over a territory that extends from the Atlantic to the Pacific. 
It fills the wide belt of the earth's surface that is bounded by the 
provinces of England on the North, and by the crumbling, and 
weak, and contemptible Governments or no Governments that 
shake the frame of Mexico on the South. Have Nature and 
Providence left ns without resources to hold together social 
unity, notwithstanding the vast expanse of the earth's surface 
which our population has traversed and possessed ? No. Keep- 
ing pace with our wants in that regard, the rapid locomotion 
of steam on the ocean, and on our rivers and lakes, and on the 
iron roads that bind the country together, and the instantane- 
ous electric communication of thought, which fills with the 
same facts, and with the same news, and with the same senti- 
ments, at the same moment, a great, enlightened, and intelligent 
peoj)le, have overcome all the resistance and all the dangers 
which might be attributed to natural obstructions. Even now, 
while this trial proceeds, San Francisco and New York, Boston 
and Portland, and the still farther East, communicate together 
as by a flash of lightning — indeed, it may be said, making an 
electric flash farther across the earth's surface, and intelligible 



350 TRIAL OF THE OFFICERS AND OREW 

too, to man, than ever, in the natural phenomena of the heavens, 
the lightning displayed itself. No — the same Author of all 
good, to whom Pinckney avowed his gratitude, has been our 
friend and our protector, and has removed, step by step, every 
impediment to our expansion which the laws of nature and of 
space had been supposed to interpose. No, no — neither in the 
patriotism nor in the wisdom of our fathers was there any de- 
fect ; nor shall we find, in the disposition and purposes of Di- 
vine Providence, as we can see them, any excuse or any aid 
for the destruction of this magnificent system of empire. No — 
it is in ourselves, in our own time and in our own generation, 
in our own failing powers and failing duties, that the crash and 
ruin of this magnificent fabric, and the blasting of the future 
hopes of mankind, is to find its cause and its execution. 

I have shown you, gentlemen, how, when the usurpations 
of the British Parliament, striking at the vital point of 
the independence of this country, had raised for consideration 
and determination, by a brave and free people, the question of 
their destiny, our fathers dealt with it. My learned friends, in 
various forms, have spoken poetically, logically and practically 
about all that course of proceedings that has been going on in 
this country, as finding a complete parallelism, support, and 
justification in the course of the American Revolution ; and a 
passage in the Declaration of Independence has been read to 
you as calculated to show that, on a mere theoretical opinion 
of the right of a people to govern themselves, any portion of 
that people are at liberty, as well against a good Government 
as against a bad one, to establish a bad Government as well as 
overthrow a bad Goverument — have the right to do as they 
please, and, I suppose, to force all the rest of the world and 
all the rest of the nation to just such a fate as their doing as 
they please may bring with it. 

Let us see how this Declaration of Independence, called 
by the great forensic orator, Mr. Ohoate, " a passionate and 
eloquent manifesto," and stigmatized as containing "glittering 
generalities" — let us see, I say, how sober, how discreet, how 
cautious it is in the presentation of this right, even of revolution. 
I read what, both in the newspapers and in political discussions, 
as well as before you, by the learned counsel, have been pre- 
sented as the doctrines of the Declaration of Independence, and 
then I add to it the qualifying propositions, and the practical, 
stern requisitions, which that instrument appends to these gen- 
eral views : 

"To secure these rights, Governments are instituted among men, deriving 
their just powers from the consent of the governed; that whenever any form 
of Government becomes destructive of these ends, it is the right of the people 
to alter or abolish it, and to institute new Government, laying its founda- 



OF THE SCHOONER SAVANNAH. 361 

tion on such principles, and organizing its powers in such form, as to them 
shall seem most likely to effect their safety and happiness. Prudence, indeed, 
will dictate, that Governments long established should not be changed for 
light and transient causes. And, accordingly, all experience hath shown, that 
mankind are more disposed to suffer, while evils are sufferable, than to right 
themselves by abolishing the forms to which they are accustomed. But when 
a long train of abuses and usurpations, pursuing invariably the same object, 
evinces a design to reduce them under absolute despotism, it is their right, it 
is their duty, to throw off such Government, and to provide new guards for 
their future security. Such has been the patient sufferance of these Colonies ; 
and such is now the necessity which constrains them to alter their former 
systems of Government. The history of the present King of Great Britain is 
a history of repeated injuries and usurpations, all having in direct object the 
establishment of an absolute tyranny over these States. To prove this, let 
facts be submitted to a candid world." 

^ And it then proceeds to enumerate the facts, in the eloquent 
language of the Declaration, made familiar to us all bj its 
repeated and reverent recitals on the day which celebrates its 
adoption. There is not anything of moonshine about any one 
of them. There is not anything of perhaps, or anticipation of 
fear, or suspicion. There is not anything of this or that news- 
paper malediction, of this or that rhetorical disquisition, of 
this or that theory, or of this or that opprobrium, but a recital 
of direct governmental acts of Great Britain, all tending to 
the purpose of establishing complete despotism over this coun- 
try. And, then, even that not being deemed sufficient, on the 
part of our great ancestors, to justify this appeal to the enlight- 
ened opinion of the world, and to the God who directs the fate 
of armies, they say : 

" In every stage of these oppressions, we have petitioned for redress, in 
the most humble terms ; our repeated petitions have been answered only by 
repeated injury. A Prince whose character is thus marked by every act 
which may define a tyrant, is unfit to be the ruler of a free people. 

"Nor have we been wanting in attentions to our British brethren. We 
have warned them, from time to time, of attempts by their Legislature 
to extend an unwarrantable jurisdiction over us. We have reminded them 
of the circumstances of our emigration and settlement here. We have 
appealed to their native justice and magnanimity, and we have conjured them, 
by the ties of our common kindred, to disavow these usurpations, which 
would inevitably interrupt our connection and correspondence. They, too, 
have been deaf to the voice of justice and of consanguinity." 

Now, gentlemen, this doctrine of revolution, which our 
lea rnd friends rely upon, appeals to our own sense of right 
and duty. It rests upon facts, and upon the purpose, as in- 
dicated by those facts, to deprive our ancestors ot the rights 
of Englishmen, and to subject them to the power of a Gov- 
ernment in which they were not represented. Now, whence 
come the occasions and the grievances urged before you, and 
of what kind are they? My learned friend, Mr. Brady, 
has given you a distinct enumeration, under nine heads, of 



352 TRIAL OF THE OFFICEKS AND CREW 

what the occasions are, and what the grievances are. There 
is not one of them that, in form or substance, proceeded from 
the Federal Government. There is not a statute, there is 
not a proclamation, there is not an action, judicial, executive, 
or legislative, on tlie part of the Federal Government, that 
finds a place, either in consummation or in purpose, in this 
indictment drawn by my friend Mr. Brady against the Gov- 
ernment, on behalf of his clients. The letter of South Caro- 
lina, on completing the revocation of her adoption of the Con- 
stitution, addressed to the States, dwells upon the interest of 
slavery (as does my learned friend Mr. Brady, in all his propo- 
sitions), and discloses but two ideas — one, that when any body 
or set of people cease to be a majority in a Government, they 
have a right to leave it ; and the other, that State action, on 
the part of some of the !N^orthern States, had been inconsistent 
with, threatening to, or opprobrious of the institution of slavery 
in the Southern States. 

Let me ask your attention to this proposition of the South- 
ern States, and this catalogue of the learned counsel. As 
it is only the interest of slavery, social and political (for it is 
an interest, lawfully existing), that leads to the destruction of 
our Government and of their Government, let us see what 
there is in the actual circumstances of this interest, as being 
able, under the forms of our Constitution, to look out for 
itself, as well, at least, as any other interest in the country, 
that can justify them in iiuding an example or a precedent in 
the appeal of our fathers to arms to assert their rights by the 
strong hand, because in the Government of England they had 
no representation. Did our fathers say that, because they had 
not a majority in the English Parliament, they had a right to 
rebel ? No ! They said they had not a share or vote in the 
Parliament. That was their proposition. 

I now invite you to consider this fundamental view of 
the right and power of Government, and the right and freedom 
of the people, — to wit, that every citizen is entitled to be 
counted and considered as good as every other citizen, — as a 
natural and abstract right — as the basis of our Government, 
however other arrangements may have adjusted or regulated 
that simple and abstract right. Then, let us see whether the ar- 
rangement of the Federal Government, in departing from that 
natural right of one man to be as good as another, and to be 
counted equal in the representation of his Government, has ope- 
rated to the prejudice of the interest of slavery. We have not 
heard anything in this country of any other interest for many a 
long year, — mucii to my disgust and discontent. There are other 
interests, — manufacturing interests, agricultural interests, com- 
mercial interests, all sorts of interests, — some of them discordant, 



OF THE SCHOONER SAVANNAH. 353 

if you please. Let us see whether this interest of slavery has 
a fair chance to be heard, and enjoys its fair share of political 
power under our Government, or whether, from a denial to it 
of its fair share, it has some pretext for appealing to 
force. Why, gentlemen, take the fifteen Slave States, which, 
under the census of 1850, had six millions of white people — that 
is, of citizens — and, under the census of 1860, about eight mil- 
lions, and compare them with the white people of the State of 
New York, which, under the census of 1850, had three millions, 
and, under the census of 1860, something like four millions. 

Now, here we are, — they as good as we, and we as good 
as they, — we having our interests, and opinions, and feelings — 
they their opinions, interests, and feelings, — and let us see how 
the arrangement of representation, in every part of our Gov- 
ernment, is distributed between these interests. Why, with 
a population just double that of the State of New York, the 
interest of slavery has thirty Senators to vote and to speak for 
it, and the people of New York have two Senators to vote and 
to speak for them. In the House of Representatives these same 
Slave States have ninety Representatives to speak and to vote 
for them ; and the people of the State of New York have thirty- 
three to vote and to speak for them. And, in the Electoral 
College, which raises to the chief magistracy the citizen who 
receives the constitutional vote, these same States have one 
hundred and twenty electoral votes, and the State of New 
York has thirty-five. Why, the three coterminous States — New 
York, Pennsylvania, and Ohio — have, under either census, as 
great or a greater population than the fifteen Slave States, and 
they have but six Senators, against the Slave States' thirty. 

Do I mention this in complaint ? Not in the least. I only 
mention it to show you that the vote and the voice of this in- 
terest has not been defrauded in the artificial distribution of 
Federal power. And, if I may be allowed to refer to the other 
august department of our Federal Government, the Supreme 
Court of the United States, in which the Presiding Justice has 
his seat as one of the members of that Court, you will see how 
the vast population, the vast interests of business, commerce, 
and what not, that reside in the Free States, as compared 
with the lesser population, the lesser business, and the lesser 
demand for the authority or intervention of the judiciary in the 
Slave States, have been represented for years, by the distri- 
bution of the nine Judges of that Court, so that the eighteen 
millions of white people who compose the population of the 
Free States have been represented (not in any political sense) 
by four of these Justices ; and the rest of the country, the 
fifteen Slave States, with their population of six or eight mil- 
lions, have been represented by five. Now, of this I do not 
23 



354 TRIAL OF THE OFFICERS AND CREW 

complain. It is law — it is government ; and no injustice has 
been done to the Constitution, nor has it been violated in this 
arrangement. But, has there been any fraud upon the interest 
of slavery, in the favor the Federal Government has shown in 
the marking out of the Judicial Districts, and in the apportion- 
ment of the Judges to the different regions of the country, and 
to the population of those regions ? If you look at it as regards 
the business in the different Circuits, the learned Justice who 
now presides here, and who holds his place for the Second 
Circuit, including our State, disposes annually, here and in the 
other Courts, of more business than, I may perhaps say, all the 
Circuits that are made up from the Slave States And, if you 
look at it as regards the population, there was one Circuit — 
that which was represented by the learned Mr. Justice 
McLean, lately deceased — which contained within itself five 
millions of white, free population ; while one other Circuit, 
represented by another learned Justice, lately deceased — 
a Circuit composed of Mississippi and Arkansas — contained 
only 450,000, at the time of the completion of the census of 
1850. Who complains of this ? Do we? Never. But, when 
it is said to you that there is a parallelism between the right 
of revolt, because of lack of representation, in the case of our 
people and the Parliament of England, and the case of these 
people and the United States, or any of the forms of its adminis- 
ti-ation of power, remember these things. I produce this in 
the simple duty of forensic reply to the causes put forward as 
a justification of this revolt — that is to say that, the Government 
oppressing them, or the Government closed against them, and 
they excluded from it, they had a right to resort to the revolu- 
tion offeree. 

You, therefore, must adopt the proposition of South Caro- 
lina, that, when any interest ceases to be the majority in a 
Government, it has a right to secede. How long would such a 
Government last? Why, there never was any interest in this 
country which imagined that it had a majority. Did the tariff 
interest have a majority ? Did the grain interest have a majori- 
ty ? Did the commercial interest have a majority ? Did the 
States of the West have a majority? Does California gold 
represent itself by a majority? Why, the very safety of such 
a Government as this is, that no interest shall or can be a 
majority ; but that the concurring, consenting wisdom drawn 
out «f these conflicting interests shall work out a system of 
law which will conduce to the general interest. 

Now, that I have not done my learned friend, Mr. Brady, 
any injustice in presenting the catalogue of grievances (not in 
his own view, but in the view of those who have led in this 
rebellion), let us see what they are : 



OF THE SCHOONER SAVANNAH. 355 

" Tlie claim to abolisli slavery." Is there any statute of the 
United States anywhere that has abolished it? Has any Act 
been introduced into Congress to abolish it ? Has the measure 
had a vote ? 

" Stoppage of the inter-state slave-trade." I may say the 
same thing of that. , 

" No more slavery in the Territories." Where is the Act 
of Congress, where is the movement of the Federal Govern- 
ment, where the decision of the Supreme Court, that holds that 
slavery cannot go into a territory ? Why, so far as acts go, 
everything has gone in the way of recognizing the confirmation 
of the right — the repeal of the Missouri Compromise by Con- 
gress, and the decision of the Federal Court, if it go to that 
extent, as is claimed, in the case of Dred Scott. 

"Nullification of the fugitive-slave law." Who passed the 
fugitive-slave law ? Congress. Who have enforced it ? The 
Federal power, by arms, in the city of Boston. Who have 
enjoined its observation, to Grand Juries and to Juries ? The 
Justices of the Supreme Court of the United States, in their 
Circuits. Who have held it to be constitutional ? The Supreme 
Court of the United States, and the subordinate Courts of the 
United States, and every State Court that has passed upon the 
subject, except it be the State Court of the State of Wisconsin, 
if I am correctly advised. 

"Under-ground railroads, supported by the Government, 
and paid by them." Are they ? Not in the least. 

" The case of the Creole" — where, they say, no protection 
was given to slaves on the high seas. Is tiiere any judicial 
interpretation to that efi'ect ? Nothing but the refusal of Con- 
gress to pass a bill, under some circumstances of this or that 
nature, presented for its consideration ; and, because it has 
refused, it is alleged there is the assertion of some principle that 
should charge upon this Government the inflamed and particu- 
lar views generally maintained on slavery by Garrison, Phillips, 
and Theodore Parker. 

The other enormities they clothe in general phrase, and 
do not particularly specify, except one particular subject — 
what is known as the " John Brown raid" — in regard to which, 
as it has been introduced, I shall have occasion to say some- 
thing in another connection, and, therefore, I will not comment 
upon it now. 

I find, however, I have omitted the last — ^Mr. Lincoln's doc- 
trine, that it is impossible, theoretically, for slave and free 
States to co-exist. For many years that was considered to be 
Mr. Seward's doctrine, but, when Mr. Lincoln became a candi- 
date for the Presidency, it was charged on him, being sup- 
ported by some brief extracts from former speeches made by 



356 TRIAL OF THE OFFICERS Ai(T> CREW 

him in canvassing his State. I cannot discuss all these matters. 
They are beneath the gravity of State necessity, and of the 
question of the right of revolution. They are the opinions, the 
sentiments, the rhetoric, the folly, the local rage and madness, 
if you please, in some instances, of particular inflammations, 
either of sentiment or of action, 'rising in the bosom of so vast, 
so impetuous a community as ours. But, suppose the tariff 
States, suppose the grain States, were to attempt to topple 
down the Government, and maintain a separate and sectional 
independence upon their interests, of only the degree and 
gravity, and resting in the proof of facts like these ? Now, for 
the purpose of the argument, let us suppose all these things to 
be wrong. My learned friends, who have made so great and so 
passionate an appeal that individual lives should not be 
sacrificed for opinion, certainly might listen to a proposition 
that the life of a great nation should not be destroyed on 
these questions of the opinions of individual citizens. No — you 
never can put either the fate of a nation that it must submit, or 
the right of malcontents to assert their power for its overthrow, 
upon any such proposition, of the ill-working, or of the irrita- 
tions that arise, and do not come up to the effect of oppres- 
sion, in the actual, the formal, and the persistent movement 
of Government. Never for an instant. For that would be, 
what Mr. Stephens has so ably presented the folly of doing, to 
require tliat a great Government, counting in its population 
thirty millions of men, should not only be perfect in its design 
and general form and working, but that it should secure perfect 
action, perfect opinions, perfect spirit and sentiments from every 
one of its people — and that, made out of mere imperfect indi- 
viduals who have nothing but poor human nature for their 
possession, it should suddenly become so transformed, as to be 
without a flaw, not only in its administration, but in the con- 
duct of every body under it. 

Now, my learned friends, pressed by this difficulty as to the 
sufficiency of the causes, are driven finally to this — that there 
is a right of revolution when anybody thinks there is a right of 
revolution, and that that is the doctrine upon which our Govern- 
ment rests, and upon which the grave, serious action of our 
forefathers proceeded. And it comes down to the proposition 
of my learned friend, Mr. Brady, that it all comes to the same 
thing, the power and the right. All the argument, most 
unquestionably, comes to that. But do morals, does reason, 
does common sense recognize that, because power and right 
may result in the same consequences, therefore there is no dif- 
ference in their quality, or in their support, or in their theory? 
If I am slain by the sword of justice for my crime, or by the 
dagger of an assassin for my virtue, I am dead, under the 



OF THE SCHOONER SAVANNAH. 357 

stroke of either. But is one as right as the other ? An op- 
pressive Government may be overthrown by tlie uprising of 
the oppressed, and Lord Camden's maxim may be adhered to, 
that " when oppression begins, resistance becomes a right ;" but 
a Government, beneficent and free, may be attacked, may be 
overthrown by tyranny, by enemies, by mere power. The 
Colonies may be severed from Great Britain, on the principle 
of the right of the people asserting itself against the tyranny 
of the parent Government; and Poland may be dismembered 
by the interested tyranny of Russia and Austria ; and each 
is a revolution and destruction of the Government, and its 
displacement by another — a dismemberment of the community, 
and the establishment of a new one under another Govern- 
ment. But, do my learned friends say that they equally come 
to the test of power as establishing the right? Will my 
learned friend jDlant himself, in justification of this dismem- 
berment of a great, free, and prosperous people, upon the 
example of the dismemberment of Poland, by the introduc- 
tion of such influences within, and by the co-operation of 
such influences without, as secured that result? Certainly not. 
And yet, if he puts it upon the right and the power, as coming 
to the same thing, it certainly cannot make any difference 
whether the power proceeds from within or from without. 
There is no such right. Both the public action of communities 
and the private action of individuals must be tried, if there is 
any trial, any scrutiny, any judgment, any determination, upon 
some principles that are deeper than the question of counting 
. bayonets. When we are referred to the case of Yictor Eman- 
nuel overthrowing the throne of the King of IS'aples, and 
thus securing the unity of the Italian people under a benign 
Government, are we to be told that the same principle aijd the 
same proposition would have secured acceptance before the 
forum of civilization, and in the eye of morality, to a success- 
ful eflort of the tyrant of Kaples to overthrow the throne of 
Victor Emannuel, and include the whole of Italy under his, 
King Bomba's, tyranny? No one. The quality of the act, the 
reason, the support, and the method of it, are traits that im- 
press their character on those great public and national trans- 
actions as well as upon any other. 

There is but one proposition, in reason and morality, 
beyond those I have stated, which is pressed for the extri- 
cation and absolution of these prisoners from the guilt that the 
law, as we say, impresses upon their action and visits with its 
punishment. It is said that, however little, as matter of law, 
these various rights and protections may come to, good faith, 
or sincere, conscientious conviction on the part of these men as 



358 TRIAL OF THE OFFICERS ANT) CREW 

to what they have done, should protect them against the public 
justice. 

Now, we have heard a great deal of the assertion and of the 
execration of the doctrine of the "higher law," in the discus- 
sions of legislation, and in the discussions before the popular 
mind ; but I never yet have heard good faith or sincere opinion 
pressed, in a Court of Justice, as a bar to the penalty which 
the law has soberly affixed, in the discreet and deliberate 
action of the Legislature. And here my learned friend fur- 
nishes me, by his reference to the grave instance of injury to 
the property, and the security, and the authority of the State 
of V irginia, which he has spoken of as " John Brown's raid," 
with a ready instance, in which these great principles of public 
justice, the authority of Government, and the sanctions of 
human law were met, in the circumstances of the transaction, 
by a complete, and thorough, and remarkable reliance, for the 
motive, the support, the stimulus, the solace, against all the 
penalties which the law had decreed for such a crime, on this 
interior authority of conscience, and this supremacy of personal 
duty, according to the convictions of him who acts. The great 
State of Virginia administered its justice, and it found, as its 
principal victim, this most remarkable man, in regard to whom 
it was utteily impossible to impute anything like present or 
future, near or remote, personal interest or object of any kind 
— a man in regard to whom Governor Wise, of Virginia, said, 
in the very presence of the transaction of his trial, that he was 
the bravest, the sincerest, the truthfulest man that he ever 
knew. And now, let us look at the question in the light in 
which our learned friend presents it — that John Brown, as 
matter of theoretical opinion of what be had a right to do, 
under the Constitution and laws of his country, was justified, 
upon the pure basis of conscientious duty to God — and let us 
see whether, before the tribunals of Virginia, as matter of fact, 
or matter of law, or right, or duty, any recognition was given 
to it. 'No. John Brown was not hung for his theoretical 
heresies, nor was he hung for the hallucinations of his judg- 
ment and the aberration of his wrong moral sense, if you so 
call it, instead of the interior light of conscience, as he regarded 
it. He was hung for attacking the sovereignty, the safety, the 
citizens, the property, and the people of Virginia. And, 
when my learned friend talks about this question of hanging 
for political, moral, or social heresy, and that you cannot 
thus coerce the moral power of the mind, he vainly seeks to 
beguile your judgment. When Eavaillac takes the life of 
good King Henry, of France, is it a justification that, in the 
interests of his faith, holy to him — of the religion he professed 
— he felt impelled thus to take the life of the monarch? When 



OF THE SCHOONER SAVANNAH. 359 

the assassin takes, at the door of the House of Commons, the 
life of the Prime Minister, Mr. Percival, because he thinks 
that the course of measures his administration proposes to 
carry out is dangerous to the country, and falls a victim to 
violated laws, I ask, in the name of common sense and com- 
mon fairness — are these executions to be called hanging for po- 
litical or religious here-ies? No. And shall it ever be said 
that sincere convictions on these theories of secession and of 
revolution are entitled to more respect than sincere convictions 
and opinions on the subject of human rights? Shall it be said 
that faith in Jefferson Davis is a greater protection from the 
penalty of the law than faith in God was to John Brown or 
Francis Ravaillac ? 

But, gentlemen, it was said that certain isolated acts of 
some military or civil authority of the United States, or some 
promulgation of orders, or affirmation of measures by the Gov- 
ernment, had recognized the belligerent right, or the right to 
be considered as a power fighting for independence, of this 
portion of our countrymen. The nags of truce, and the capit- 
ulation at Hatteras Inlet, and the announcement that we would 
not invade Virginia, but would protect the Capital, are claimed 
as having recognized this point. JSTow, gentlemen, this at- 
tempts either too much or too little. Is it gravely to be said 
that, when the Government is pressing its whole power for the 
restoration of peace and for the suppression of this rebellion, it 
is recognizing a right to rebel, or has liberated from the penal- 
ties of the criminal law such actors in it as it may choose to 
bring to punishment? Is it to be claimed here that, by reason 
of these proceedings, the Government has barred itself from 
taking such other proceedings, under the same circumstances, 
as it may think fit ? Why, certainly not. The Government 
may, at any time, refuse to continue this amenity of flags of 
truce. It can, the next time, refuse to receive a capitulation 
as " prisoners of war," and may, in any future action — as, in- 
deed, in its active measures for the suppression of the rebellion 
it is doing — affirm its control over every part of the revolted 
regions of this country. There is nothing in this fact that 
determines anything for the occasion, but the occasion itself. 
The idea that the commander of an expedition to Hatteras 
Inlet has it in his power to commit the Government, so as to 
empty the prisons, to overthrow the Courts, and to discharge 
Jurors from their duty, and criminals from the penalties of their 
crimes, is absurd. 

I shall now advert to the opinion of Judge Cadwalader, on 
the trial in Philadelphia, and to the propositions of the counsel 
there, on behalf of the prisoners, as containing and including 
the general views and points urged, in one form or another, 



360 TKIAI. OF THE OFFICERS AND CREW 

and with greater prolixity, at least, if not earnestness and force,, 
by the learned counsel who defend the prisoners here. It will 
be found that those points cover all these considerations : 

First. If the Confederate States of America is a Government, either de 
facto or de jure, it had a right to issue letters of marque and reprisal ; and if 
issued before the commission of the alleged offence, that the defendant, act- 
ing under the authority of such letters, would be a privateer, and not a pirate, 
and, as such, is entitled to be acquitted. 

Second. That if, at the time of the alleged offence, the Southern Confede- 
racy, by actual occupation, as well as acts of Government, had so far acquired 
the mastery or control of the particular territory within its limits as to 
enable it to exercise authority over, and to demand and exact allegiance from, 
its residents, that then a resident of such Confederacy owes allegiance to the 
Government under which he lives, or, at least, that by rendering allegiance 
to such Government, whether on sea or land, he did not thereby become a 
traitor to the Government of the United States. 

Third. That if, at the time of the alleged offence and the issuing of the 
letters of marque and reprisal upon which the defendant acted, the Courts 
of the United States were so suspended or closed in the Southern Confede- 
racy, as to be no longer able to administer justice and enforce the law in 
such Confederacy, that the defendant thereby became so far absolved from 
his allegiance to the United States as to enable him to take up arras for, and 
to enter the service of, the Southern Confederacy, either on land or sea, with- 
out becoming a traitor to the Government of the United States. 

Fourth. That if, at the time of the alleged offence and his entering into 
the service of the Southern Confederacy, the defendant was so situated as to 
be unable to obtain either civil or military protection from the United States, 
whilst at the same time he was compelled to render either military or naval 
service to the Southern Confederacy, or to leave the country, and, in this 
event, to have his property sequestrated or confiscated by the laws of the 
said Confederacy, that such a state of things, if they existed, would amount 
in law to such duress as entitles the defendant here to an acquittal. 

Fifth. That this Court has no jurisdiction of the case, because the pris- 
oner, after his apprehension on the high seas, was first brought into another 
District, and ought to have been there tried. 

And now, gentlemen, even a more remote, unconnected 
topic, has been introduced into this examination, and discussed 
and pursued with a good deal offeree and feeling, by my learned 
friend, Mr. Brady ; and that is, what this war is for, and what is 
expected to be accomplished by it. Well, gentlemen, is your 
verdict to depend upon any question of that kind ? Is it to 
depend either upon the purpose of the Government in waging 
the war, or upon its success in that purpose ? If so, the trial 
had been better postponed to the end of the war, and then you 
will find your verdict in the result. What is the meaning of 
this ? Let those who began the war say wliat the war is for. 
Is it to overthrow this Government and to dismember its 
territory ? Is it to acquire dominion over as large a portion of 
what constitutes the possessions of the American people, and 
over as large a share of its population, as the policy or the mili- 
tary power of the interest that establishes for itself an iudepend- 



OF THE SCHOONER SAVANNAH, 361 

ent Government, for its own protection, can accomplish? Who 
are seeking to subjugate, and who is seeking to protect? No 
subjugation is attempted or desired, in respect of the people of 
these revolting States, except that subjugation which they 
themselves made for themselves when they adopted the Consti- 
tution of the United States, and thanked God, with Charles 
Cotesworth Pincknej'", that his blessing permitted them to do 
80, — and, up to this time, with Alexander Stephens, have found 
it to be a Government that can only be likened, on this terres- 
trial sphere, to the Eden and Paradise of the nations of men. 
"What is the interest that is seeking to wrest from the authority 
of that benign Government portions of its territory and author- 
ity, but the social and political interest of slavery, about which 
I make no other reproach or question than this — that it has 
purposes, and objects, and principles which do not consult the 
general or equal interests of the population of these revolting 
States themselves, nor contemplate a form of Government that 
any Charles Cotesworth Pinckney, now, or atiy Alexander 
Stephens, hereafter, can thank God for having been pernj^itted to 
establish ; and that, as Mr. Stephens has said, instead of becom- 
ing gods, by bursting from the restraints of this Eden, they will 
discover their own nakedness, and, instead of finding peace and 
prosperity, they will come to cutting their own throats. 

Now, what is the duty of a Government that finds this 
assault made by the hands of terror and of force against the 
judgment and wishes of the discreet, sober, and temperate, at 
least, to those to whom it owes protection, as they owe alle- 
giance to it ? What, but to carry on, by the force of the Gov- 
ernment, the actual suppression of the rebellion, so that arms 
may be laid down, peace may exist, and the law and the Con- 
stitution be reinstated, and the great debate of opinion be 
restored, that has been interrupted by this vehement recourse 
to arms ? What, but to see to it that, io stead of the conse- 
quences of this revolt being an expulsion, from this Paradise 
of free Government, of these people whom we ought to keep 
within it, it shall end in the expulsion of that tempting ser- 
pent — be it secession or be it slavery — that would drive them 
out of it. Government has duties, gentlemen, as well as rights. 
If our lives and our property are subject to its demands under 
the penal laws, or for its protection and enforcement as an 
authority in the world, it carries to every citizen, on the farthest 
sea, in the humblest schooner, and to the great population of 
these Southern States in their masses at home, that firm pro- 
tection which shall secure him against the wicked and the will- 
ful assaults, whether it be of a pirate on a distant sea, or of an 
ambitious and violent tyranny upon land. When this state of 
peace and repose is accomplished by Conventions, by petitions, 



362 TRIAX OF THE OFFIOEES AND CKEW 

by representations against Federal laws, Federal oppressions, or 
Federal principles of government, the right of the people to 
be relieved from oppression is presented ; and then may the 
spirit and the action of our fathers be invoked, and their con- 
demnation of the British Parliament come in play, if we do not 
do what is right and just in liberating an oppressed people. 
But I need not say to you that the whole active energies of 
this system of terror and of force in the Southern States have 
been directed to make impossible precisely the same debate, 
the same discussion, the same appeal, and the same just and 
equal attention to the appeal. And you will find this avowed 
by many of their speakers and by many of their writers — as, 
when Mr. Toombs interrupts Mr. Stephens in the speech I have 
quoted from, when urging that the people of Georgia should be 
consulted, by saying: " lam afraid of Conventions and afraid 
of the people ; I do not want to hear from the cross-roads and 
the groceries," which are the opportunities of public discussion 
and influence, it appears, in the State of Georgia. That is 
exactly,what they did not want to hear from ; and their rash 
withdrawal of this great question from such honest, sensible 
consideration, will finally bring them to a point that the people, 
interested in the subject, will take it by force; and then, be- 
sides their own nakedness, which they have now discovered, 
the second prophecy of Mr. Stephens, that they will cut their 
own throats, will come about ; and nothing but the powerful 
yet temperate, the firm yet benign, authority of this Govern- 
ment, compelling peace upon these agitations, will save those 
communities from social destruction and from internecine strife 
at home. 

ISTow, having such an object, can it be accomplished? 
It cannot, unless you try ; and it cannot, if every soldier who 
goes into the field concludes that he will not fire oflf his gun, for 
it is uncertain whether it will end the war ; or if, on any post 
of duty that is devolved upon citizens in private life, we desert 
our Government, and our full duty to the Government. But 
that it can be done, and that it will be done, and that all this 
talk and folly about conquering eight millions of people will 
result in nothing, I find no room to doubt. In the first place, 
where are your eight millions ? Why, there are the fifteen 
Slave States, and four of them — Maryland, Delaware, Ken- 
tucky, and Missouri — are not yet within the Confederacy. So 
we will subtract three millions, at least, for that part of the 
concern. Then there are five millions to be conquered ; and 
how are they to be conquered ? Why, not by destruction, not 
by slaughter, not by chains and manacles ; but by the impres- 
sion of the power of the Government, showing that the strug- 
gle is vain, that the appeal to arms was an error and a crime, 



OF THE SCHOONER SAVANNAH. 363 

and that, in the region of debate and opinion, and in equal 
representation in the Government itself, is the remedy for all 
grievances and evils. Be sure that, whatever may be said or 
thought of this question of war, these people can be, not sub- 
jugated, but compelled to entertain those inquiries by peaceful 
means ; and I am happy to be able to say that the feeble hopes 
and despairing views which my learned friend, Mr. Brady, has 
thought it his duty to express before you, as to the hopelessness 
of any useful result to these hostilities, is not shared by one 
whom my friend, in the eloquent climax to an oration, placed 
before us as " starting, in a red shirt, to secure the liberties of 
Italy." I read his letter : 

*' Oaprera, Sejyt. 10. 
^^ Dear Sir : I saw Mr. Sandford, and regret to be obliged to announce to 
you that I shall not be able to go to the United States at present. I do not 
doubt of the triumph of the cause of the Union, and that shortly ; but, if the 
war should unfortunately continue in your beautiful country, I shall over- 
come the obstacles whic^ detain me and hasten to the defence of a people 
who are dear to me. 

"G. GARIBALDI." 

Garibaldi has had some experience, and knows the dif- 
ference between efforts to make a people free, and the warlike 
and apparently successful efforts of tyranny ; and he knows 
that a failure, even temporary, does not necessarily secure to 
force, and fraud, and violence a permanent success. He knows 
the difference between restoring a misguided people to a free 
Government, and putting down the efforts of a people to get up 
a Iree Government. He knows those are two different things ; 
and, if the war be not shortly ended, as he thinks it will be, 
then he deems it right for him, fresh from the glories of secur- 
ing the liberties of Italy, to assist in maintaining — what? 
Despotism ? ISTo ! the liberties of America. 

One of the learned counsel, who addressed you in a strain 
of very effective and persuasive eloquence, charmed us all by 
the grace of his allusion to a passage in classical history, and 
recalled your attention to the fact that, when the States of 
Greece which had warred against Athens, anticipating her 
downfall beneath the prowess of their arms, met to determine 
her fate, and when vindictive Thebes and envious Corinth 
counseled her destruction, the genius of the Athenian Sopho- 
cles, by the recital of the chorus of the Electra, disarmed this 
cruel purpose, by reviving the early glories of united Greece. 
And the counsel asked that no voice should be given to punish 
harshly these revolted States, if they should be conquered. 

The voice of Sophocles in the chorus of the Electra, and 
those glorious memories of the early union, were produced to 
bring back into the circle of the old confederation the erring and 



364 TRIAL OF THE OFFICERS AND CREW 

rebellious Attica. So, too, what shall we find in the memories 
of the Revolution, or in the. eloquence with which we have 
been taught to revere them, that will not urge us all, by every 
duty to the past, to the present, and to the future, to do what 
we can, whenever a duty is reposed in us, to sustain the Gov- 
ernment in its rightful assertion of authority and in the main- 
tenance of its power? Let me ask your attention to what has 
been said by the genius of Webster on so great a theme as 
the memory of Washington, bearing directly on all these ques- 
tions of union, of glory, of hope, and of duty, which are in- 
volved in this inquiry. See whether, from the views thus 
invoked, there will not follow the same influence as from the 
chorus of the Electra, for the preservation, the protection, the 
restoration of every portion of what once was, and now is, and, 
let us hope, ever shall be, our common country. 

On the occasion of the centennial anniversary of the birth- 
day of Washington, at the national Capital, in 1832, Mr. Web- 
ster, by the invitation of men in public ■station as well as of 
the citizens of the place, delivered an oration, about which I 
believe the common judgment of his countrymen does not 
diflfer from what is known to have been his own idea, that it 
was the best presentation of his views and feelings which, in 
the long career of his rhetorical triumphs, he had had the 
opportunity to make. 

No man ever thought or spoke of the character of Wash- 
ington, and of the great part in human affairs which he played, 
without knowing and feeling that the crowning glory of 
all his labors in the field and in the council, and the perpetual 
monument to his fame, if his fame, shall be perpetual, would 
be found in the establishment of the American Union under 
the American Constitution. All the prowess of the war, all 
the spirit of the Revolution, all the fortitude of the effort, 
all the self-denial of the sacrifice of that period, were for 
nothing, and worse than nothing, if the result and consum- 
mation of the whole were to be but a Government that con- 
tained within itself the seeds of its own destruction, and existed 
only at the caprice and whim of whatever part of the people 
should choose to deny its rightfulness or seek to overthrow 
its authority. In pressing that view, Mr. Webster thus at- 
tracts the attention of his countrymen to the great achieve- 
ment in human affairs which the establishment of this Gov- 
ernment has proved to be, and thus illustrates the character of 
Washington : 

" It was the extraordinary fortune of Washington that, having been in- 
trusted, in revolutionary times, with the supreme military command, and 
having fulfilled that trust with equal renown for wisdom and for valor, he 
should be placed at the head of the first Government in which an attempt 



OF THE SCHOONER SAVANNAH. 366 

was to be made, on a large scale, to rear the fabric of social order on the 
basis of a written Constitution and of a pure representative principle. A 
Government was to be established, without a throne, without an aristocracy, 
without castes, orders, or privileges ; and this Government, instead of being 
a democracy, existing and acting within the walls of a single city, was to be 
extended over a vast country, of different climates, interests and habits, and 
of various communions of our common Christian faith. The experiment 
certainly was entirely new. A popular <xovernment of this extent, it was 
evident, could be framed only by carrying into full effect the principle of rep- 
resentation or of delegated power; and the world was to see whether society 
could, by the strength of this principle, maintain its own peace and good 
government, carry forward its own great interests, and conduct itself to po- 
litical renown and glory. ***** 

* * * * I remarked, gentlemen, that the whole world was 
and is interested in the result of this expeffment. And is it not so? Do we 
deceive ourselves, or is it true that at this moment the career which this 
Government is running is among the most attractive objects to the civihzed 
world ? Do we deceive ourselves, or is it true that at this moment that love 
of liberty and that understanding of its true principles, which are flying over 
the whole earth, as on the wings of all the winds, are really and truly of 
American origin? ***** 

* * * * Gentlemen, the spirit of human liberty and of free 
Government, nurtured and grown into strength and beauty in America, has 
stretched its course into the midst of the nations. Like an emanation from 
Heaven, it has gone forth, and it will not return void. It must change, it is 
fast changing, the face of the earth. Our great, our high duty, is to show, 
in our own example, that this spirit is a spirit of health as well as a spirit of 
power.; that its longevity is as great as its strength ; that its etEciency to 
secure individual rights, social relations, and moral order, is equal to the irre- 
sistible force with which it prostrates principalities and powers. The world 
at this moment is regarding us with a willing, but something of a fearful, ad- 
miration. Its deep and awful anxiety is to learn whether free States may be 
stable as well as free ; whether popular power may be trusted, as well as 
feared ; in short, whether wise, regular, and virtuous self-government is a 
vision for the contemplation of theorists, or a truth established, illustrated, 
and brought into practice in the country of Washington. 

Gentlemen, for the earth which we inhabit, and the whole circle of the sun, 
for all the unborn races of mankind, we seem to hold in our hands, for their 
weal or woe, the fate of this experiment. If we fail, who shall venture the 
repetition? If our example shall prove to be one, not of encouragement, but 
of terror, not fit to be imitated, but fit only to be shunned, where else shall 
the world look for free models ? If this great Western Suti be struck out of 
the firmament, at what other fountain shall the lamp of liberty hereafter be 
lighted ? What other orb shall emit a ray to glimmer, even, on the darkness 
of the world ? ***** 

* * * * The political prosperity which this country has 
attained and which it now enjoys, has been acquired mainly through the 
instrumentality of the present Government. While this agent continues, the 
capacity of attaining to still higher degrees of prosperity exists also. We 
have, while this lasts, a political life capable of beneficial exertion, with power 
to resist or overcome misfortunes, to sustain us against the ordinary accidents 
of human affairs, and to promote, by active efforts, every public interest. But 
dismemberment strikes at the very being which preserves these faculties. It 
would lay its rude and ruthless hand on this great agent itself. It would 
sweep away, not only what we possess, but all power of regaining lost, or ac- 



366 TRIAL OF THE OFFICERS AND CREW 

quiring new, possessions. It would leave the country, not only bereft of its 
prosperity and happiness, but without limbs, or organs, or faculties, by which 
to exert itself hereafter in the pursuit of that prosperity and happiness. 

Other misfortunes may be borne, or their effects overcome. If disas- 
trous war should sweep our commerce from the ocean, another generation 
may renew it ; if it exhaust our treasury, future industry may replenish it ; 
if it desolate and lay waste our fields, still, under a new cultivation, they 
will grow green again, and ripen to future harvests. It were but a trifle 
even if the walls of yonder Capitol were to crumble, if its lofty pillars should 
fall, and its gorgeous decorations be all covered by the dust of the valley. 
All these might be rebuilt. But who shall reconstruct the fabric of demol- 
ished Government? Who shall rear again the well-proportioned columns of 
constitutional liberty ? Who shall frame together the skilful architecture 
which unites national sovereignty with State rights, individual security, and 
pubHc prosperity ? No, if these columns fall, they will be raised not again. 
Like the Coliseum and the Parttienon, they will be destined to a mourn- 
ful, a melancholy immortality. Bitterer tears, however, will flow over them, 
than were ever shed over the monuments of Roman or Grecian art ; for they 
will be the remnants of a more glorious edifice than Greece or Rome ever 
saw — the edifice of constitutional American Liberty. * * * * 

* * * * A hundred years hence other disciples of Wash- 
ington will celebrate his birth, with no less of sincere admiration than we 
now commemorate it. When they shall meet, as we now meet, to do them- 
selves and him that honor, so surely as they shall see the blue summits of 
his native mountains rise in the horizon, so surely as they shall behold the 
river on whose banks he lived, and on whose banks he rests, still flowing on 
toward the sea, so surely may they see, as we now see, the flag of the Union 
floating on the top of the Capitol ; and then, as now, may the sun in his course 
visit no land more free, more happy, more lovely, than this our own 
country ! " 

If, gentlemen, the eloquence of Mr. Webster, which thus 
enshrines the memory and the great life of Washington, calls 
us back to the glorious recollections of the Revolution and 
the establishment of our Government, does it not urge every 
man everywhere that his share in this great trust is to be per- 
formed now or never, and wherever his fidelity and his devo- 
tion to bis country, its Government and its spirit, shall place the 
responsibility upon him ? It is not the fault of the Govern- 
ment, of the learned District Attorney, or of me, his humble 
associate, that this, your verdict, has been removed, by the 
course of this argument and by the course of this eloquence 
on the part of the prisoners, from the simple issue of the guilt 
or innocence of these men under the statute. It is not the ac- 
tion or the choice of the Government, or of its counsel, that 
you have been drawn into higher considerations. It is not our 
fault that you have been invoked to give, on the undisputed 
facts of the case, a verdict which shall be a recognition of the 
power, the authority, and the right of the rebel Government to 
infringe our laws, or partake in the infringement of them, to 
some form and extent. And now, here is your duty, here your 
post of fidelity — not against law, not against the least right 
under the law, but to sustain, by whatever sacrifice there may 



OF THE SCHOONER SAVANNAH. 367 

be of sentiment or of feeling, the law and the Constitution. I 
need not say to yon, gentlemen, that if, on a state of facts 
which admits no diversity of opinion, with these opposite forces 
arrayed, as they now are, before you — the Constitution of the 
United States, the laws of the United States, the commission of 
this learned Court, derived from the Government of the United 
States, the venire and the empanneling of this Jury, made 
under the laws and by the authority of the United States, on 
our side — met, on their side, by nothing, on behalf of the prison- 
ers, but the commission, the power, the right, the authority of 
the rebel Government, proceeding from Jefferson Davis — you 
are asked, by the law, or under the law, or against the law, 
in some form, to recognize this power, and thus to say that 
the folly and the weakness of a free Government find here their 
last extravagant demonstration, then you are asked to say 
that the vigor, the judgment, the sense, and the duty of a Jury, 
to confine themselves to their responsibility on the facts of the 
case, are worthless and yielding before impressions of a dis- 
cursive and loose and general nature. Be sure of it, gentle- 
men, that, on what I suppose to be the facts concerning this 
particular transaction, a verdict of acquittal is nothing but a 
determination that our Government and its authority, in the 
premises of this trial, for the purposes of your verdict, are met 
and overthrown by the protection thrown around the prisoners 
by the Government of the Confederate States of America, 
actual or incipient. Let us hope that you will do what falls 
to your share in the post of protection in which you are placed, 
for the liberties of this nation and the hopes of mankind; 
for, in surrendering them, you will be forming a part of the 
record on the common grave of the fabric of this Government, 
and of the hopes of the human race, where our flag shall droop, 
with every stripe polluted and every star erased, and the glo- 
rious legend of " Liberty and Union, now and forever, one and 
inseparable," replaced by this mournful confession, " Unworthy 
of freedom, our baseness has surrendered the liberties which 
we had neither the courage nor the virtue to love or defend." 



368 TRIAL OF THE OFFICERS AKD CREW 



CHARGE OF JUDGE NELSON. 

Judge Nelson then proceeded to deliver the Charge of the 
Court, in which Judge Ship^nan^ his associate, concurred : 

The first question presented in this case is, whether or not 
the Court has jurisdiction of the oflence ? This depends upon a 
clause of the 14:th section of the Act of Congress of 1825, as 
follows : " And the trial of all offences which shall be commit- 
ted upon the high seas or elsewhere, out of the limits of any 
State or District, shall be in the District where the offender 
is apprehended, or into which he may be first brought," The 
prisoners, who were captured by an armed vessel of the United 
States, off Charleston, South Carolina, were ordered by the 
commander of the fleet to New York for trial ; but the Minne- 
sota, on board of which they were placed, was destined for 
Hampton Roads, and it became necessary, therefore, that they 
should be there transferred to another vessel. They were thus 
transferred to the Harriet Lane, and, after some two days' de- 
lay, consumed in the preparation, they were sent on to this port, 
wnere they were soon after arrested by the civil authorities. It 
is insisted, on behalf of the prisoners, that inasmuch as Hamp- 
ton Roads, to which place the prisoners were taken and trans- 
ferred to the Harriet Lane, was within the Eastern District of 
the State of Yirginia, the jurisdiction attached in that District, 
as that was the first District into which the prisoners were 
brought. The Court is inclined to think that the circumstances 
under which the Minnesota was taken to Hampton Roads, in 
connection with the original order by the commander that the 
prisoners should be sent to this District for trial, do not make 
out a bringing into that District within the meaning of the 
statute. But we are not disposed to place the decision on this 
ground. The Court is of opinion that the clause conferring 
jurisdiction is in the alternative, and that jurisdiction may be 
exercised either in the District in which the prisoners were first 
brought, or in that in which they were apprehended under 
lawful authority for the trial of the offence. This brings us to 
the merits of the case. 

The indictment under which the prisoners are tried con- 
tains ten counts. The first five are framed upon the third 
section of the Act of Congress of 1820, which is as follows : 
"That, if any person shall, upon the high seas, commit the 
crime of robbery, in or upon any ship or vessel, or upon 
any of the ship's company of any ship or vessel, or the lading 
thereof, such person shall be adjudged to be a pirate," and. 



OF THE SCHOONER SAVANNAH. 369 

upon conviction, shall suffer death. The five several counts 
charge, in substance, that the prisoners did, upon the high seas, 
enter in and upon the brig Joseph, the same being an American 
vessel, and upon the ship's company, naming them; and did, 
then and there, piratically, feloniously, and violently make an 
assault upon them, and put them in personal fear and danger 
of their lives ; and did, then and there, the brig Joseph, her 
tackle and apparel, her lading (describing it), which were in the 
custody and possession of the master and crew, from the said 
master and crew and from their possession, and in their 
presence, and against their will, violently, piratically and 
feloniously seize, rob, steal, take and carry away, against the form 
of the statute, &c. There are some variances in the different 
counts, but it will not be material to notice them. It will be 
observed that this provision of the Act of Congress prescribing 
the offence applies to all persons, whether citizens or foreigners, 
making no distinction between them, and is equally applicable, 
therefore, to all the prisoners at the bar. The remaining five 
counts are framed under the 9th section of the Act of Congress 
of 1790, which is as follows : " That if any citizen shall commit 
any piracy or robbery aforesaid, or any act of hostility against 
the United States, or any citizen thereof, upon the high sea, 
under color of any commission from any foreign Prince or State, 
or on pretence of authority from any person, such offender 
shall, notwithstanding the pretence of any such authority, be 
deemed, adjudged, and taken to be a pirate, felon, and robber," 
and, on conviction, shall sufler death. These five counts charge 
that the prisoners are all citizens of the United States, and that 
they committed the acts set forth in the previous five counts, 
on pretence of authority from one Jefferson Davis. 

As the provision of the Act of Congress upon which these 
counts are framed is applicable only to citizens and not to for- 
eigners, but four of the prisoners can be brought within it, as 
the other eight are admitted to be foreigners. The four are 
Baker, Howard, Passalaigue, and Harleston. The distinction 
between the provisions of the third section of the Act of 1820 
and the ninth section of 1790, and the counts in the indictment 
founded upon them, arises out of a familiar principle of inter- 
national law, and which is, that in a state of war existing be- 
tween two nations, either may commission private armed ves- 
sels to carry on war against the enemy on the high seas, and 
the commission will atibrd protection, even in the judicial tribu- 
nals of the enemy, against a charge of the crime of robbery or 
piracy. Such a commission would be a good defence against 
an indictment under the third section of 1820, by force of the 
above rule of international law. The ninth section of the Act 
of 1790 changes the rule as it respects citizens of the United 
24 



370 TRIAL OF THE OFFICERS AND CREW 

States who may take service under the commission of the pri- 
vate armed vessels of the enemy of their country. It declares, 
as it respects them, the commission shall not be admitted as a 
defence ; and, as this legislation relates only to our own citi- 
zens, and prescribes a rule of action for them, and not as it re- 
spects the citizens or subjects of other countries, we do not per- 
ceive that any exception can be taken to the Act as unconstitu- 
tional or otherwise. But, upon the view the Court has taken 
of the case, it will not be necessary to trouble you with any 
remarks as it respects this ninth section, nor in respect to the 
several counts framed under it, but we shall confine our ob- 
servations to a consideration of the third section of the Act of 
1820. There can be no injustice to the prisoners in thus re- 
stricting the examination, as any authority for the perpetration 
of the acts charged in the indictment, founded upon the Act 
of 1820, will be equally available to them. Nor can there be 
any injustice to the prosecution, for unless the crime of rob- 
bery, as prescribed in the Act of 1820, is established against 
the four prisoners, none could be under the ninth section of the* 
Act of 1790. The crime in the two Acts is the same for all the 
purposes of this trial. The only difference is the exclusion of 
a particular defence under the latter. Now, the crime charged 
is robbery upon an American vessel on the high seas, and 
hence it is necessary that we should turn our attention to the 
inquiry, what constitutes this offence ? It has already been 
determined by the highest authority — the Supreme Court of 
the United States — that we must look to the common law for a 
definition of the term robbery, as it is to be presumed it was 
used by Congress in the Act in that sense, and, taking this rule 
as our guide, it will be found the crime consists in this : the 
felonious taking of goods or property of any value from the 
person of another, or in his presence, against his will, by vio- 
lence, or putting him in fear. The taking must be felonious — 
that is, taking with a wrongful intent to appropriate the goods 
of another. It need not be a taking which, if upon the high 
seas, would amount to piracy, according to the law of nations, 
or what, in some of the books, is called general piracy or rob- 
bery. This is defined to be a forcible depredation upon prop- 
erty upon the high seas without lawful authority, done animo 
furandi — that is, as defined in this connection, in a spirit and 
intention of universal hostility. 

A pirate is said to be one who roves the sea in an armed 
vessel, without any commission from any sovereign State, on 
his own authority, and for the purpose of seizing by force and 
appropriating to himself, without discrimination, every vessel 
he may meet. For this reason, pirates, according to the law 
of nations, have always been compared to robbers — the only 



OF THE SCHOONER SAVANNAH. 371 

difference being that the sea is the theatre of the operations of 
one and the land of the other. And, as general robbers and 
pirates upon the high seas are deemed enemies of the human 
race — making war upon all mankind indiscriminately — the 
crime being one against the universal laws of society — the 
vessels of every nation have a right to pursue, seize, and punish 
them. Now, if it were necessary, on the part of the Govern- 
ment, to bring the crime charged in the present case against 
the prisoners within this definition of robbery and piracy, as 
known to the common law of nations, there would be great 
difficulty in so doing either upon the evidence, or perhaps upon 
the counts, as charged in the indictment — certainly upon the 
evidence. For that shows, if anything, an intent to depredate 
upon the vessels and property of one nation only — the United 
States — which falls far short of the spirit and intent, as we 
have seen, that are said to constitute essential elements of the 
crime. But the robbery charged in this case is that which the 
Act of Congress prescribes as a crime, and may be denominated 
a statute offence as contra-distinguished from that known to 
the law of nations. Tlie Act, as you have seen, declares the 
person a pirate, punishable by death, who commits the crime 
of robbery upon the high seas against any ship or vessel, or 
upon any ship's company of any ship or vessel, <fec. ; and the 
interpretation given to these words applies the crime to the 
case of depredation upon an American vessel or property on 
the high seas, under circumstances that would constitute rob- 
bery, if the offence was committed on land, and which is, 
according to the language of Blackstone, the felonious and 
forcible taking from the person of another of goods or money, 
to any value, by violence or putting him in fear. The felonious 
intent which describes the state of mind as an element of the 
offence, is what is called in technical language animo furandi, 
which means an intent of gaining by another's loss, or to de- 
spoil another of his goods lucri causa^ for the sake of gain. 
Now, if you are satisfied, upon the evidence, that the prisoners 
have been guilty of this statute offence of robbery upon the high 
seas, it is your duty to convict them, though it may fall short 
of the offence as known to the law of nations. We have 
stated what constitute the elements of the crime, and it is 
your province to apply the facts to them, and thus determine 
whether or not the crime has been committed. That duty be- 
longs to you, and. not to the Court. We have said that, in a 
state of war between two nations, the commission to private 
armed vessels from either of the belligerents affords a defence, 
according to the law of nations, in the Courts of the enemy, 
against a charge of robbery or piracy on the high seas, of which 
they might be guilty in the absence of such authority ; and 



372 TKIAL OF THE OFFICERS AND CKEW 

■under tbis principle it has been insisted, by the learned counsel 
for the prisoners, that the commission of the Confederate States, 
by its President, Davis, to the master and crew of the 
Savannah, which has been given in evidence, affords such 
defence. 

In support of this position, it is claimed that the Confede- 
rate States have thrown off the power and authority of the 
General Government ; have erected a new and independent 
Government in its place, and have maintained it against the 
whole military and naval power of the former; that it is a 
Government, at least de facto^ and entitled to the rights and 
privileges that belong to a sovereign and independent nation. 
The right, also, constitutional or otherwise, has been strongly 
urged, and the law of nations and the commentaries of emi- 
nent publicists have been referred to as justifying the secession 
or revolt of these Confederate States. Great ability and re- 
search have been displayed by the learned counsel for the 
defence on this branch of the case. But the Court do not deem 
it pertinent, or material, to enter into this wide field of inquiry. 
Tliis branch of the defence involves considerations that do not 
belong to the Courts of the country. It involves the determi- 
nation of great public, political questions, wliich belong to 
departments of our Government that have charge of our foreign 
relations — the legislative and executive departments ; and, 
when decided by them, the Court follows the decision ; and, 
until these departments have recognized the existence of the 
new Government, the Courts of the nation cannot. Until this 
recognition of the new Government, the Courts are obliged to 
regard the ancient state of things remaining as unchanged. 
This has been the uniform course of decision and practice of 
the Courts of the United States. The revolt of the Spanish 
Colonies of South America, and the new Government erected 
on separating from the mother country, were acknowledged by 
an Act of Congress, on the recommendation of the President, 
in 1822. Prior to this recognition, and during the existence 
of the civil war between Spain and her Colonies, it was the 
declared policy of our Government to treat both parties as 
belligerents, entitled equally to the rights of asylum and hos- 
pitality ; and to consider them, in respect to the neutral rela- 
tion and duties of our Government, as equally entitled to the 
sovereign rights of war as against each other. This was, also, 
the doctrine of the Courts, which they derived from the policy 
of the Government, following the political departments of the 
Government as it respects our relations with new Governments 
erected on the overthrow of the old. And if this is the rule 
of the Federal Courts, in the case of a revolt and erection of 
a new Government, as it respects foreign nations, much more 



OF THE SCHOONER SAVANNAH. 373 

is the rule applicable when the question arises in respect to a 
revolt and the erection of a new Government within the limits 
and against the authority of the Government under which we 
are engaged in administering her laws. And, in this connec- 
tion, it is proper to say that, as the Confederate States must first 
be recognized by the political departments of the mother 
Government, in order to be recognized by the Courts of the 
country, namely, the legislative and executive departments, 
we must look to the acts of these departments as evidence of 
the fact. The act is the act of the nation through her consti- 
tutional public authorities. These, gentlemen, are all the 
observations we deem necessary to submit to you. The case is 
an interesting one, not only in the principles involved, but to 
the Government and the prisoners at the bar. It has been 
argued with a research and ability in proportion to its magni- 
tude, both in behalf of the prisoners and the Government ; and 
we do not doubt, with the aid of these arguments, and the 
instructions of the Court, you will be enabled to render an 
intelligent and just verdict in the case. 

The Jury retired at twenty minutes after three o'clock. 

At six o'clock they came into Court. Their names were 
called, and the inquiry made by the Clerk whether they had 
agreed upon their verdict. Their Foreman said they had not. 
One of the prisoners having felt unwell, had been removed 
from the close air of the Court-room, and some little delay 
occurred until he was brought in. Judge Nelson then said : 
" We have had a communication from one of the oflficers in 
charge of the Jury, from the Jury, as we understood, though 
it had no name signed to it. I would inquire whether the 
note was from the Jury ? 

The Foreman : It was. 

Judge Nelson : We would prefer that the Jurymen, or any 
of them who may be embarrassed with the difficulties referred 
to, should himself state the inquiry which he desires to make 
of the Court. 

Mr. Powell^ one of the Jurors, said that the question was, 
" whether, if the Jury believed that civil war existed, and 
had been so recognized by the act of our Government, or if the 
Jury believe that the intent to commit a robbery did not exist 
in the minds of the prisoners at the time, it may influence their 
verdict." 

After consultation with' Judge Shipman, Judge Nelson said : 
As it respects the first inquiry of the Juror — whether the Gov- 



374: TRIAL OF THE OFFICERS AND CREW 

ernment has recognized a state of civil war between the Con- 
federate States and itself — the instruction which the Court gave 
the Jury was, that this Court could not recognize a state of 
civil war, or a Government of the Confederate States, unless 
the legislative and executive Departments of the Government 
had recognized such a state of things, or the President had, or 
both ; and that the act of recognition was a national act, and 
that we must look to the acts of these Departments of the 
Government as the evidence and for the evidence of the recog- 
nition of this state of things, and the only evidence. As it 
respects the other question — whether or not, if the Jury were of 
opinion, on the evidence, that these prisoners did not intend to 
commit a robbery on the high seas against the property of the 
United States, they were guilty of the offence charged — that is 
a mixed question of law and fact. Tlie Court explained to you 
what constitutes the crime of robbery on the high seas, which 
was the felonious taking of the property of another upon the 
high seas by force, by violence, or putting them in fear of bod- 
ily injury, which, according to the law, is equivalent to actual 
force ; and that the term felonious, as interpreted by the law 
and the Courts, was the taking with a wrongful intent to de- 
spoil the others of their property. These elements constitute 
the crime of robbery. Now, it is for you to take up the facts 
and decide whether the evidence in the case brings the prison- 
ers within that definition. The Court will not encroach upon 
your province in these respects, but will confine itself to the 
definition of the law. 

Another of the Jury — George H. Hansell — rose and said: 
One of the Jury — not myself — understood your honor to charge 
that there must be an intent to take the property of another for 
your own use. 

Judge Nelson : Ko, I did not give that instruction. The 
Jury may withdraw. 

The Jury again retired, and, as there was no probability of 
an agreement at half-past seven o'clock, the Court adjourned 
to eleven o'clock Thursday morning. 



OF THE SCHOONER 8AVANNAH. 37& 



EIGHTH DAY. 

Oct. 31. 

The Jury, who had been in deliberation all night, came 
into Court at twenty minutes past eleven o'clock. The names 
of the prisoners were called, and, on the Jury taking their 
seats — 

The Clerk said : Gentlemen of the Jury, have you agreed 
on your verdict ? 

Foreman : No, sir. 

The Court : Is there any prospect of your agreeing ? 

Foreman : I am sorry to say there is no prospect at all that 
we can come to an agreement. 

After some consultation with Judge Shipman — 

Judge Nelson inquired: Is the opinion expressed by the 
Foreman that of the other Jurymen ? 

Mr, Powell andJfr. Cassidy {Zvlvoy^ rose and responded 
in the affirmative. 

Mr. Taylor further remarked : The prospect seems to be 
that way. So far as we have gone, there does not seem to be 
any idea of coming together at all. The only idea of coming 
to a judgment would be that some of the Jurors, we think, do 
not understand the charge. They think they do, and we think 
they do not. It is for them to say, or not, whether they under- 
stand the charge correctly. 

To this implied invitation to the Jurymen to express them- 
selves there was no response. 

Judge Nelson : If the Court supposed that there would be 
any fair or reasonable prospect of your coming to an agreement, 
we would be inclined to direct you to retire and pursue your 
consultations further. You have now been together about 
twenty hours, and unless there is some expression from the 
Jury that there is a possibility or probability that they may 
agree, we are inclined not to detain you longer. 

Mr. Costello (a Juror) : With respect to the Court, I think 
there is no likelihood of our coming to an agreement. 



376 TRIAL OF THE OFFICERS AND CREW OF THE SAVANNAH. 

Foreman : If the Court will allow me, after the instructions 
we got yesterday evening, at the instance of many of the Jury, 
we stand just in the same position we stood when we left your 
presence the first time. 

Judge Nelson : The Court, then, will discharge you, gentle- 



men. 



The Court entered ai\ order remanding the prisoners, and, 
as they were about being removed — 

Mr. E. Delafield Smith (District Attorney) said : I desire, 
if the Court please, to move, in the case of the Savannah pri- 
vateers, their trial at the earliest day consistent with the en- 
fagements of the Court, and of the counsel engaged for the 
efence ; and I would name a week from next Monday, as it 
will, probably, be necessary to issue an order for a new panel 
of Jurors. 

Judge Nelson : So far as I am concerned, I can only remain 
until the 20th of November, and the business of the Court is 
such that the trial cannot take place while I am here, as I must 
devote the rest of my time to other causes. 

Mr. Smith: Then the motion for a new panel will be re- 
served until we see at what time it will be possible to bring the 
case on. 

Mr. Lord: Before that application shall be seriously enter- 
tained by the Court, we would like to be heard upon the sub- 
ject. I will say nothing now, because it is very evident it can- 
not be discussed at this time. 

Judge Nelson : The counsel may assume that 1 cannot take 
up the second trial during the present term. They may act 
upon that view. 

The prisoners were then remanded to the custody of the 
Deputy Marshals. 



APPENDIX. 



PRESIDENT'S PROCLAMATION, APRIL 15, 1861. {Page 109.) 

By the President of the United States. 

Whereas, the laws of the United States have been for some time past, 
and now are, opposed, and the execution thereof obstructed, in the States of 
South CaroHna, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, 
by combinations too powerful to be suppressed by the ordinary course of ju- 
dicial proceedings, or by the powers vested in the Marshals by law : Now, 
therefore, I, Abraham Lincoln, President of the United States, in virtue of the 
power in me vested by the Constitution and the laws, have thought fit to call 
forth, and hereby do call forth, the mihtia of the several States of the Union, 
to the aggregate number of 75,000, in order to suppress said combinations 
and to cause the laws to be duly executed. 

The details for this object will be immediately communicated to the State 
authorities through the War Department. I appeal to all loyal citizens to 
favor, facilitate, and aid this effort to maintain the honor, the integrity, and 
existence of our national Union, and the perpetuity of popular government, 
and to redress wrongs already long enough endured. I deem it propei* to 
say that the first service assigned to the forces hereby called forth will prob- 
ably be to repossess the forts, places, and property which have been seized from 
the Union ; and in every event the utmost care will be observed, consistently 
with the objects aforesaid, to avoid any devastation, any destruction of, or 
interference with, property, or any disturbance of peaceful citizens of any 
part of the country ; and I hereby command the persons composing the com- 
binations aforesaid to disperse and retire peaceably to their respective abodes 
within twenty days from this date. 

Deeming that the present condition of public affairs presents an extraor- 
dinary occasion, I do hereby, in virtue of the power in me vested by the Con- 
stitution, convene both houses of Congress. The Senators and Representa- 
tives are, therefore, summoned to assemble at their respective Chambers, at 
twelve o'clock, noon, on Thursday, the fourth day of July next, then and 
there to consider and determine such measures as, in their wisdom, the pub- 
lic safety and interest may seem to demand. 

In witness whereof, I have hereunto set my hand, and caused the seal of 
the United States to be aflBxed. 

Done at the City of Washington, this fifteenth day of April, in the year 
of our Lord one thousand eight hundred and sixty-one, and of the indepen- 
dence of the United States the eighty-fifth. 

ABRAHAM LINCOLN. 

By the President. 

William H. Sewakd, Secretary of State. 



378 APPENDIX. 



II. 



PROCLAMATION OF THE PRESIDENT, DECLARING A BLOCKADE. 

{Page 109.) 

By the President of the United States of America. 

Whereas, an insurrection against the Government of the United States 
has broken out in the States of South Carolina, Georgia, Alabama, Florida, 
Mississippi, Louisiana, and Texas, and the laws of the United States for the 
collection of the revenue cannot be efficiently executed therein conformably 
to that provision of the Constitution which requires duties to be uniform 
throughout the United States : 

And whereas a combination of persons engaged in such insurrection 
have threatened to grant pretended letters of marque, to authorize the bearers 
thereof to commit assaults on the lives, vessels, and property of good citizens 
of the country lawfully engaged in commerce on the high seas, and in waters 
of the United States : 

And whereas an Executive Proclamation has been already issued, requir- 
ing the persons engaged in these disorderly proceedings to desist therefrom, 
calling out a militia force for the purpose of repressing the same, and convening 
Congress in extraordinary session to deliberate and determine thereon : 

Now, therefore, I, Abraham Lincoln, President of the United States, with 
a view to the same purposes before mentioned, and to the protection of the 
public peace and the lives and property of quiet and orderly citizens pur- 
suing their lawful occupations, until Congress shall have assembled and de- 
liberated on the said unlawful proceedings, or until the same shall have 
ceased, have further deemed it advisable to set on foot a blockade of the 
ports within the States aforesaid, in pursuance of the laws of the United 
States and of the laws of nations in such cases provided. For this purpose 
a competent force will be posted so as to prevent entrance and exit of ves- 
sels from the ports aforesaid. If, therefore, with a view to violate such block- 
ade, a vessel shall approach, or shall attempt to leave any of the said ports, 
she will be duly warned by the Commander of one of the blockading vessels, 
who will indorse on her register the fact and date of such warning ; and if 
the same vessel shall again attempt to enter or leave the blockaded port, she 
will be captured, and sent to the nearest convenient port for such proceed- 
ings against her and her cargo, as prize, as may be deemed advisable. 

And I hereby proclaim and declare, that if any person, under the pre- 
tended authority of said States, or under any other pretence, shall molest a 
vessel of the United States, or the persons or cargo on board of her, such 
person will be held amenable to the laws of the United States for the preven- 
tion and punishment of piracy. 

ABRAHAM LINCOLN. 

By the President. 

William H. Seward, Secretary of State. 
Washington, April 19, 1861. 



APPENDIX. 



III. 



3Y9 



CORRESPONDENCE BETWEEN GOV. PICKENS, OF SOUTH CARO- 
LINA, AND MAJOR ANDERSON, COMMANDING AT FORT 
SUMTER, IN RELATION TO THE FIRING ON THE STAR OF 
THE WEST. {Page 110.) 

To his Excellency the Governor of South Carolina : 

Sir : Two of your batteries fired this morning on an unarmed vessel bear- 
ing the flag of my Government. As I have not been notified that war has 
been declared by South Carolina against the United States, I cannot but 
think this a hostile act, committed -without your sanction or authority. Un- 
der that hope, I refrain from opening a fire on your batteries. I have the 
honor, therefore, respectfully to ask whether the above-mentioned act — one 
which I believe without parallel in the history of our country or any other 
civilized Government — was committed in obedience to your instructions ? and 
notify you, if it is not disclaimed, that I regard it as an act of war, and I 
shall not, after reasonable time for the return of my messenger, permit any 
vessel to pass within the range of the guns of my fort. In order to save, as 
far as it is in my power, the shedding of blood, I beg you will take due noti- 
fication of my decision for the good of all concerned. Hoping, however, your 
answer may justify a further continuance of forbearance on my part, 
I remain, respectfully, 

ROBERT ANDERSON. 



GOV. PICKENS' REPLY. 

Gov. Pickens, after stating the position of South Carolina towards the 
United States, says that any attempt to send United States troops into 
Charleston harbor, to reinforce the forts, would be regarded as an act of hos- 
tility ; and in conclusion adds, that any attempt to reinforce the troops at 
Fort Sumter, or to retake and resume possession of the forts within the waters . 
of South Carolina, which Major Anderson abandoned, after spiking the cannon 
and doing other damage, cannot but be regarded by the authorities of the 
State as indicative of any other purpose than the coercion of the State by the 
armed force of the Government ; special agents, therefore, have been off the 
bar to warn approaching vessels, armed and unarmed, having troops to rein- 
force Fort Sumter aboard, not to enter the harbor. Special orders have been 
given the Commanders at the forts not to fire on such vessels until a shot across 
their bows should warn them of the prohibition of the State, Under these 
circumstances the Star of the West, it is understood, this morning attempted 
to enter the harbor with troops, after having been notified she could not 
enter, and consequently she was fired into. This act is perfectly justified by 
me. 

In regard to your threat about vessels in the harbor, it is only necessary 
for me to say, you must be the judge of your responsibility. Your position 
in the harbor has been tolerated by the authorities of the State, and while the 
act of which you complain is in perfect consistency with the rights and duties 
of the State, it is not perceived how far the conduct you propose to adopt 
can find a parallel in the history of any country, or be reconciled with any 
other purpose than that of your Government imposing on the State the con- 
dition of a conquered province, 

F. W. PICKENS. 



380 APPENDIX. 



SECOND COMMUNICATION FROM MAJOR ANDERSON. 

To his Excellency Governor Pickens : 

Sir : I have the honor to acknowledge the receipt of your communication, 
and say that, under the circumstances, I have deemed it proper to refer the 
whole matter to my Government, and intend deferring the course I indicated 
in my note this morning until the arrival from Washington of such instruc- 
tions as I may receive. 

I have the honor also to express the hope that no obstructions will be placed 
in the way, and that you will do me the favor of giving every facility for the 
departure and return of the bearer, Lieut. T. Talbot, who is directed to make 
the journey. 

ROBERT ANDERSON. 



IV. 

EXTRACTS FROM PRESIDENT LINCOLN'S INAUGURAL, 
MARCH 4, 1861. (Page 110.) 

The power confided to me will be used to hold, occupy, and possess the 
property and places belonging to the Government, and collect the duties on 
imports ; but, beyond what may be necessary for these objects, there will be 
no invasion, no using of force against or among the people anywhere. Where 
hostility to the United States shall be so great and so universal as to prevent 
competent resident citizens from holding the federal oflBces, there will be no 
attempt to force obnoxious strangers among the people with that object. 
While the strict legal right may exist of the Government to enforce the exer- 
cise of these offices, the attempt to do so would be so irritating, and so nearly 
impracticable withal, that I deem it better to forego for the time the use of 
such offices. -t * * * * 

I do not forget the position assumed by some that constitutional ques- 
tions are to be decided by the Supreme Court, nor do I deny that such 
decision must be binding in any case upon the parties to a suit, while they 
are also entitled to very high respect and consideration in all parallel cases 
by all other departments of the Government ; and while it is obviously pos- 
sible that such decision may be erroneous in any given case, still the evil 
effect following it, being limited to that particular case, with the chances that 
it may be overruled and never become a precedent for other cases, can better 
be borne than could the evils of a different practice. At the same time, the 
candid citizen must confess that, if the policy of the Government upon the 
vital questions affecting the whole people is to be irrevocably fixed by the 
decisions of the Supreme Court, the instant they are made in ordinary litiga- 
tions between parties in personal actions, the people will have ceased to be 
their own masters, — having, to that extent, practically resigned their Govern- 
ment into the hands of that eminent tribunal. Nor is there, in this view, 
any assault upon the Court or the Judges. It is a duty from which they 
may not shrink, to decide cases properly brought before them ; and it is no 
fault of theirs if others seek to turn their decisions to political purposes. 



APPENDIX. 381 



THE PRESIDENT'S SPEECH TO THE VIRGINIA COMMISSIONERS. 

{Page 110.) 

To Honorable Messrs. Preston, Stuart, and Randolph : 

Gentlemen: As a Committee of the Virginia Convention, now in session, 
you present me a preamble and resolution in these words : 

"Whereas, in the opinion of this Convention, the uncertainty which 
prevails in the public mind as to the policy which the Federal Executive 
intends to pursue towards the seceded States is extremely injurious to the 
industrious and commercial interests of the country ; tends to keep up an 
excitement which is unfavorable to the adjustment of the pending difficulties; 
and threatens a disturbance of the public peace ; therefore — 

" Resolved, That a committee of three delegates be appointed to wait on 
the President of the United States, present to him this preamble, and respect- 
fully ask him to communicate to this Convention the policy which the Fede- 
ral Executive intends to pursue in regard to the Confederate States." 

In answer, I have to say, that having, at the beginning of my official 
term, expressed my intended policy as plainly as I was able, it is with deep 
regret and mortification I now learn there is great and injurious uncertainty 
in the public mind as to what that policy is, and what course I intend to 
pursue. Not having as yet seen occasion to change, it is now my purpose to 
pursue the course marked out in the inaugural address. I commend a care- 
ful consideration of the whole document as the best expression I can give to 
my purposes. As I then and therein said, I now repeat — "The power con- 
fided in me will be used to hold, occupy, and possess property and places 
belonging to the Government, and to collect the duties and imposts; but 
beyond what is necessary for these objects, there will be no invasion, no using 
of force against or among the people anywhere." By the words " property 
and places belonging to the Government," I chiefly allude to the military 
posts and property which were in possession of the Government when it 
came into my hands. But if, as now appears to be true, in pursuit of a pur- 
pose to drive the United States authority from these places, an unprovoked 
assault has been made upon Fort Sumter, I shall hold myself at liberty to 
repossess, if I can, like places which had been seized before the Govern- 
ment was devolved upon me ; and in any event I shall, to the best of my 
ability, repel force by force. In case it proves true that Fort Sumter has 
been assaulted, as is reported, I shall, perhaps, cause the United States mails 
to be withdrawn from all the States which claim to have seceded, believing 
that the commencement of actual war against the Government justifies and 
possibly demands it. I scarcely need to say, that I consider the military 
posts and property situated within the States which claim to have seceded as 
yet belonging to the Government of the United States as much as they did 
before the supposed secession. Whatever else I may do for the purpose, I 
shall not attempt to collect the duties and imposts by any armed invasion of 
any part of the country ; not meaning by this, however, that I may not land 
a force deemed necessary to relieve a fort upon the border of the country. 
From the fact that I have quoted a part of the inaugural address, it must not 
be inferred that I repudiate any other part, — the whole of which I re-affirm, 
except so far as what I now say of the mails may be regarded as a modifi- 
cation. 



382 APPENDIX. 



VI. 



EXTRACTS FROM PRESIDENT LINCOLN'S MESSAGE TO CON- 
GRESS, JULY 4, 186L 

At the beginning of the present presidential term, four months ago, the 
functions of the Federal Government were found to be generally suspended 
within the several States of South Carolina, Georgia, Alabama, Mississippi, 
Louisiana, and Florida, excepting only of the post-office department. Within 
these States all the forts, arsenals, dockyards, custom-houses and the like, 
including the movable and stationary property in and about them, had been 
seized and were held in open hostility to this Government, excepting only 
Forts Pickens, Taylor, and Jefferson, on and near the Florida coast, and Fort 

Sumter, in Charleston harbor. South Carolina. 

********* 

In accordance with this purpose, an ordinance had been adopted in each 
of these States, declaring the States respectively to be separated from the 
National Union. A formula for instituting a combined Government of those 
States had been promulgated, and this illegal organization, in the character of 
the " Confederate States," was already invoking recognition, aid, and inter- 
vention from foreign powers. 

Finding this condition of things, and believing it to be an imperative duty 
upon the incoming Executive to prevent, if possible, the consummation of 
such attempt to destroy the Federal Union, a choice of means to that end 
. became indispensable. This choice was made, and was declared in the inau- 
gural address. 

[After reciting the measures previously taken, he continues] : 

Other calls were made for volunteers to serve three years, unless sooner 
discharged, and also for large additions to the regular army and navy. These 
measures, whether strictly legal or not, were ventured upon under what ap- 
peared to be a popular demand and a public necessity, — trusting then, as now, 
that Congress would readily ratify them. 

It is believed that nothing has been done beyond the constitutional com- 
petency of Congress. Soon after the first call for militia, it was considered a 
duty to authorize the Commanding General, in proper cases, according to his 
discretion, to suspend the privilege of the writ of habeas corpus, or, in other 
words, to arrest and detain, without resort to the ordinary process and forms 
of law, such individuals as he might deem dangerous to the public safety. 

This authority has purposely been exercised but very sparingly. Never- 
theless, the legality and propriety of what has been done under it are ques- 
tioned, and the attention of the country has been called to the proposition 
that one who is sworn to take care that the laws are faithfully executed should 
not himself violate them. 



APPENDIX. 383 



VII. 



EXTRACTS FROM PRESIDENT BUCHANAN'S MESSAGE TO CON- 
GRESS, DECEMBER 4, 1860. 

The Fugitive-Slave Law has been carried into execution in every contested 
case since the commencement of the present administration, though often, it 
is to be regretted, with great loss and inconvenience to the master, and with 
considerable expense to the Government. Let us trust that the State Legisla- 
tures will repeal their unconstitutional and obnoxious enactments. Unless 
this shall be done without unnecessary delay, it is impossible for any human 
power to save the Union. 

The Southern States, standing on the basis of the Constitution, have a 
right to demand this act of justice from the States of the North. Should it 
be refused, then the Constitution, to which all the States are parties, will 
have been willfully violated, in one portion of them, in a provision essential 
to the domestic security and happiness of the remainder. In that event, the 
injured States, after having first used all constitutional and peaceful means 
to obtain redress, would be justified in revolutionary resistance to the Gov- 
ernment of the Union. 
********* 

What, in the meantime, is the responsibility and true position of the 
Executive ? He is bound by a solemn oath before God and the country " to 
take care that the laws are faithfully executed ;" and from this obligation he 
cannot be absolved by any human power. But what if the performance of 
this duty, in whole or in part, has been rendered impracticable by events 
over which he could have exercised no control ? Such, at the present mo- 
ment, is the case throughout the State of South Carolina, so far as the laws 
of the United States, to secure the administration of justice by means of the 
federal judiciary, are concerned. All the federal officers within its limits, 
through whose agency alone these laws can be carried into execution, have 
already resigned. We no- longer have a District Judge, a District Attorney, 
or a Marshal, in South Carolina. In fact, the whole machinery of the Fed- 
eral Government, necessary for the distribution of remedial justice among 
the people, has been demolished, and it would be difficult, if not impossible, 
to replace it. 

The only Acts of Congress upon the Statute Book bearing on this subject 
are those of the 28th February, 1795, and 3d March, 1807. These authorize 
the President, after he shall have ascertained that the Marshal, with his posse 
comitatus, is unable to execute civil or criminal process in any particular 
case, to call forth the militia, and employ the army and navy to aid him in 
performing this service — having first, by proclamation, commanded the insur- 
gents to disperse and retire peaceably to their respective homes within a 
limited time. This duty can not by possibility be performed in a State 
where no judicial authority exists to issue process, and where there is no 
Marshal to execute it, and where, even if there were such an officer, the 
entire population would constitute one sole combination to resist him. 

The bare enumeration of these provisions proves how inadequate they 
are, without further legislation, to overcome a united opposition in a single 
State, not to speak of other States who may place themselves in a similar 
attitude. Congress alone has power to decide whether the present laws can 
or can not be amended, so as to carry out more efiectually the objects of the 

Constitution. 

********** 

The course of events is so rapidly hastening forward, that the emergency 
may soon arise when you may be called upon to decide the momentous ques- 



384: APPENDIX. 

tion, whether you possess the power, by force of arms, to compel a State to 
remain in the Union. I should feel myself recreant to my duty were I not 
to express an opinion upon this important subject. 

The question, fairly stated, is : Has the Constitution delegated to Congresi 
the power to coerce a State into submission which is attempting to withdraw, 
or has virtually withdrawn, from the Confederacy ? If answered in the 
affirmative, it must be on the principle that the power has been conferred 
upon Congress to declare and to make war against a State. After much 
serious reflection, I have arrived at the conclusion that no such power has 
been delegated to Congress, or to any other department of the Federal Gov- 
ernment. It is manifest, upon an inspection of the Constitution, that this is 
not among the specific and enumerated powers granted to Congress ; and it 
is equally apparent that its exercise is not " necessary and proper for carry- 
ing into execution " any one of these powers. So far from this power having 
been delegated to Congress, it was expressly refused by the Convention which 
framed the Constitution. 

It appears, from the proceedings of that body, that on the 31st May, 1787, 
the clause authorizing the exertion of the force of the whole against a delin- 
quent State came up for consideration. Mr. Madison opposed it in a brief 
but powerful speech, from which I shall extract but a single sentence. He 
observed : " The use of force against a State would look more like a declara- 
tion of war than an infliction of punishment, and would probably be consid- 
ered by the party attacked as a dissolution of all previous compacts by which 
it might be bound." Upon his motion, the clause was unanimously post- 
poned, and was never, I believe, again presented. Soon afterwards, on the 
8th June, 1787, when incidentally adverting to the subject, he said : " Any 
Government for the United States, founded upon the supposed practicability 
of using force against the unconstitutional proceedings of the States, would 
prove as visionary and fallacious as the Government of Congress " — evidently 
meaning the then existing Congress of the old Confederation. 

Without descending to particulars, it may be safely asserted that the 
power to make war against a State is at variance with the whole spirit and 
intent of the Constitution. 



VIII. 



PROCLAMATION OF AUGUST 16, 1861, PURSUANT TO ACT OF 
CONGRESS OF JULY 13, 1861. 

Whereas, on the 15th day of April, the President of the United States, in 
view of an insurrection against the laws and Constitution and Government of 
the United States, which had broken out within the States of South Carolina, 
Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, and in pur- 
suance of the provisions of the Act entitled " An Act to provide for calling 
forth the militia to execute the laws of the Union, to suppress insurrection 
and repel invasion, and to repeal the Act now in force for that purpose," ap- 
proved February 18th, 1795, did call forth the militia to suppress said insur- 
rection and cause the laws of the Union to be duly executed, and the insur- 
gents having failed to disperse by the time directed by the President, and — 

Whereas such insurrection has since broken out and yet exists within the 
States of Virginia and North Carolina, Tennessee and Arkansas, and — 

Whereas the insurgents in all of the said States claim to act under au- 
thority thereof, and such claim is not disclaimed or repudiated by the person 
exercising the functions of Government in each State or States, or in the part 
or parts thereof in which combinations exist, nor has such insurrection been 
suppressed by said States — 



APPENDIX. 385 

Now, therefore, I, Abraham Lincoln, President of the United States, in 
pursuance of an Act of Congress passed July 13th, 1861, do hereby declare 
that the inhabitants of the said States of Georgia, South Carolina, Virginia, 
North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkansas, Mississippi, 
and Florida, except the inhabitants of that part of the State of Virginia lying 
west of the Alleghany Mountains, and of such other parts of that State and 
the other States hereinbefore named as may maintain a loyal adhesion to the 
Union and the Constitution, or may be, from time to time, occupied and con- 
trolled by the forces engaged in the dispersion of said insurgents, are in a 
state of insurrection against the United States, and that all commercial inter- 
course between the same and the inhabitants thereof, with the exception 
aforesaid, and the citizens of other States, and other parts of the United 
States, is unlawful, and will remain unlawful until such insurrection shall 
cease or has been suppressed ; that all goods and chattels, wares and mer- 
chandize, coming from any of the said States, with the exceptions aforesaid, 
into other parts of the United States, without a special license and permission 
of the President, through the Secretary of the Treasury, or proceeding to 
any of the said States, with the exceptions aforesaid, by land or water, 
together with the vessel or vehicle conveying the same, or conveying persons 
to or from States, with the said exceptions, will be forfeited to the United 
States ; and that, from and after fifteen days from the issue of this proclama- 
tion, all ships and vessels belonging in whole or in part to any citizen or inhab- 
itant of any State, with the said exceptions, found at sea, or in any port of the 
United States, will be forfeited to the United States ; and I hereby enjoin on 
all District Attorneys, Marshals, and officers of the revenue and of the mili- 
tary and naval forces of the United States, to be vigilant in the execution of 
said Act, and in the enforcement of the penalties and forfeitures imposed or 
declared by it, leaving any party who may think himself aggrieved thereby 
the right to make application to the Secretary of the Treasury for the remis- 
sion of any penalty or forfeiture, which the said Secretary is authorized by 
law to grant, if, in his judgment, the special circumstances of any case shall 
require such remission. 

In witness whereof, I have hereunto set my hand, and caused the seal of 
the United States to be affixed. Done in the City of Washington, this 16th 
day of August, in the year of our Lord 1801, and of the independence of the 
United States the eighty-sixth. 

ABRAHAM LINCOLN. 
Wm. H. Seward, Secreta/ry of BtaU. 

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